four arguments for religious freedom
The Essential Rights and Liberties of Religion in the American Constitutional Experiment
John Witte, Jr.
71 Notre Dame L. Rev. 371 (1996)
Thomas Jefferson once described the religion clauses of the First Amendment to the United States Constitution as a “fair” and “novel experiment” in religious rights and liberties. The religion clauses, declared Jefferson, defied the millennium-old assumptions inherited from Western Europe -- that one form of Christianity must be established in a community, and that the state must protect and support it against other religions. The religion clauses, Jefferson argued, suffer neither prescriptions nor proscriptions of religion. All forms of Christianity must stand on their own feet and on an equal footing with all other religions. Their survival and growth must turn on the cogency of their word, not the coercion of the sword, on the faith of their members, not the force of the law.
This bold constitutional experiment in religious liberty, though neither as fair nor as novel as Jefferson believed, remains intact and in progress in the United States. The First Amendment religion clauses, drafted in 1789 and ratified in 1791, remain the predominant federal constitutional text to govern religious rights and liberties in America. Principal governance of this experiment—initially left to state legislatures and state courts—has since the 1940s fallen largely to the United States Supreme Court and lower federal courts.
The American experiment in religious liberty initially inspired exuberant rhetoric throughout the young republic and beyond. Elhanan Winchester, a Baptist preacher turned Universalist, declared proudly to a London audience in 1789:
There is but one country in the world where liberty, and especially religious liberty, is so much enjoyed as in these kingdoms, and that is the United States of America: there religious liberty is in the highest perfection. All stand there on equal ground. ... A man may be chosen there to the highest civil offices, without being obliged to give any account of his faith, subscribe [to] any religious test, or go to the communion table of any church.
Dozens of such confident endorsements of the American experiment in religious rights and liberties can be found in the sermons, pamphlets, and monographs of the young American republic.
Today, the American experiment inspires far more criticism than praise. The United States does “embosom” all religious sects and denominations, as [Yale] President [Erza] Stiles predicted, not only from Christendom, but from around the world. American citizens do enjoy remarkable freedom of thought, conscience, and belief—too much freedom, according to some commentators. But the laboratory of the United States Supreme Court, which has directed the American experiment for the past fifty years, no longer inspires confidence. Not only have the Court’s recent decisions on the rights of religious minorities in America—particularly Jews, native American Indians, and Muslims—evoked withering attacks in the popular and professional media. The Court’s entire record on religious liberty has become vilified for its lack of consistent and coherent principles and its uncritical use of mechanical tests and empty metaphors. “Religion Clause jurisprudence,” Mary Ann Glendon [writes,]
Religion clause jurisprudence has been described on all sides, and even by Justices themselves, as unprincipled, incoherent, and unworkable. . . . [T]he Court must now grapple seriously with the formidable interpretive problems that were overlooked or given short shrift in the past. The task is an urgent one, for it concerns nothing less than the cultural foundations of our experiment in ordered liberty.
The United States Supreme Court is not the only body that is now “grappling” with the experiment. In the past few years, the testing ground seems to be shifting away from the courts to the legislatures, and away from the federal government to the states—a trend encouraged by several recent Supreme Court opinions. Congress has issued a number of acts to defend the free exercise rights of various religious individuals and groups, and in the Religious Freedom Restoration Act [RFRA] to define the appropriate free exercise test to be used in future cases. At the same time, state legislatures and courts have become bolder in conducting their own experiments in religious liberty that seem calculated to revisit, if not rechallenge, prevailing Supreme Court interpretations of the establishment and free exercise clauses. These recent trends have served to exacerbate the indeterminacy of the American experiment.
When an experiment becomes a “kind of wandering inquiry, without any regular system of operations,” wrote Francis Bacon, the “father” of the experimental method, “prudence commends three correctives.” First, said Bacon, we must “return to first principles and axioms,” reassess them in light of our experience, and “if necessary refine them.” Second, we must assess “our experience with the experiment” in light of these first principles, to determine where “the experiment should be adjusted.” Third, we must “compare our experiments” and experiences with those of fellow scientists, and where we see in that comparison “superior techniques,” we must “amend our experiments” and even our first principles accordingly. Though Bacon offered these prudential instructions principally to correct scientific experiments that had gone awry, his instructions commend themselves to legal and political experiments as well—as he himself sought to demonstrate in seventeenth century English law and politics.
This Article applies Bacon’s prudential instructions to the American constitutional experiment in religious rights and liberties—an experiment that today is, indeed, “wandering, without any regular system of operations.” Applying Bacon’s first instruction, Part I distills from the diverse theological and political traditions and experiences of the eighteenth century the most widely embraced “first principles” of the American constitutional experiment—the “ essential rights and liberties of religion,” to use eighteenth century parlance. These principles included liberty of conscience, free exercise of religion, confessional and structural pluralism, equality of religions before the law, separation of the institutions of church and state, and disestablishment of religion. . . .
This Article is more expansionist than revisionist in inspiration and methodology. The essential rights and liberties of religion analyzed and advocated herein are not new creations. But I ground these principles in several eighteenth century sources and twentieth century international prototypes that have not been part of the conventional discussion. I also strip them of the thick accretions of recent casuistry that have obscured their essential value, vigor, and validity. The call for an integrated framework of religious liberty in America is also not new. But I warn against efforts to reduce the religion clause guarantees to one or two principles alone—even the vaunted principles in vogue today, such as neutrality, separation, equality, or accommodation. Religion is simply too vital and valuable a source of individual flourishing and social cohesion to be left to such primitive legal defenses. As both eighteenth century American writers and twentieth century international jurists have repeatedly argued, a variety of principles must be integrated into an interlocking and interdependent shield of religious liberties and rights for all. The principles of liberty of conscience, free exercise, pluralism, equality, separation, and disestablishment form the essential amalgam of any such shield.
I. The “Genesis” of the American Constitutional Experiment
The religion clauses of the state constitutions and of the First Amendment, forged between 1776 and 1791, express both theological and political sentiments. They reflect both the convictions of the religious believers of the young American republic and the calculations of their political leaders. They manifest both the certitude of leading eighteenth century theologians such as Isaac Backus and John Witherspoon, and the skepticism of such contemporaneous philosophers as Thomas Jefferson and Thomas Paine.
The American experiment in religious rights and liberties cannot, in my view, be reduced to the First Amendment religion clauses alone, nor can the intent of the framers be determined simply by studying the cryptic record of the debates on these clauses in the First Session of Congress—however valuable that source is still today. Not only are these Congressional records incomplete, but the First Amendment religion clauses, by design, reflect only a small part of the early constitutional experiment and experience. The religion clauses, on their face, define only the outer boundaries of appropriate government action respecting religion—government may not prescribe (“establish”) religion nor proscribe (“prohibit”) its exercise. Precisely what governmental conduct short of outright prescription or proscription of religion is constitutionally permissible is left open for debate and development. Moreover, the religion clauses on their face bind only the federal government (“Congress”), rendering prevailing state constitutional provisions, and the sentiments of their drafters, equally vital sources of original intent. Finally, the drafters of the religion clauses urged interpreters to look not to the drafters’ intentions, but, in James Madison’s words, “to the text itself [and] the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses.” The understanding of the state conventional delegates was derived from their own state constitutional experiments and experiences, which are reflected in contemporaneous pamphlets, sermons, letters, and speeches. A wide range of eighteenth century materials must thus be consulted to come to terms with the prevailing sentiments on religious rights and liberties in the young American republic.
A. Four Views of Religious Rights and Liberties in the Late Eighteenth Century
Within the eighteenth century sources at hand, two pairs of theological perspectives on religious liberties and rights were critical to constitutional formation: those of congregational Puritans and of free church evangelicals. Two pairs of contemporaneous political perspectives were equally influential: those of enlightenment thinkers and civic republicans. Exponents of these four perspectives often found common cause and used common language, particularly during the Constitutional Convention and ratification debates. Yet each group cast its views in a distinctive ensemble, with its own emphases and its own applications.
It must be emphasized that this is a heuristic classification, not a wooden taxonomy, of the multiple opinions on religious rights and liberties in the early republic. Other views besides these circulated, and other labels besides these were (and can be) used to describe these four views. Moreover, individual writers of the eighteenth century often straddled two or more perspectives, shifted their allegiances or alliances over time, or changed their tones as they moved from formal writing to the pulpit or to the political platform. John Adams, for example, expounded both Puritan and civic republican views. John Witherspoon moved freely between evangelical and civic republican camps. Jonathan Edwards, at least in his political and ethical writings, toed (and moved) the line between old light Puritan and new light evangelical perspectives. James Madison’s early writings on religious liberty had a strong evangelical flavor; his political speeches in the early sessions of Congress often pulsed with civic republican sentiments; his later writings, particularly after his Presidency, were of increasingly firm enlightenment stock.
Nonetheless, exponents of these four views offered distinctive and distinguishable teachings on religious rights and liberties, and collectively had the most influence on constitutional formation. The so-called original intent of the American constitutional framers respecting government and religion cannot be reduced to any one of these views. It must be sought in the tensions among them and in the general principles that emerge from their interaction.
1. Puritan Views
The New England Puritans were the direct heirs of the theology of religious liberty taught by European Calvinists. They had revised and refined this European legacy through the efforts of John Winthrop, John Cotton, Cotton Mather, Jonathan Edwards, Charles Chauncy, Jonathan Mayhew, and a host of other eminent writers. Since the 1630s, the Puritans had dominated the New England colonies.
The Puritans who wrote on religious liberties and rights were concerned principally with the nature of the church, of the state, and of the relationship between them. They conceived of the church and the state as two separate associations, two seats of Godly authority in the community. Each institution, they believed, was vested with a distinct polity and calling. The church was to be governed by pastoral, pedagogical, and diaconal authorities who were called to preach the word, administer the sacraments, teach the young, care for the poor and the needy. The state was to be governed by executive, legislative, and judicial authorities who were called to enforce law, punish crime, cultivate virtue, and protect peace and order.
In the New England communities where their views prevailed, the Puritans adopted a variety of safeguards to ensure the basic separation of the institutions of church and state. Church officials were prohibited from holding political office, serving on juries, interfering in governmental affairs, endorsing political candidates, or censuring the official conduct of a statesman. Political officials, in turn, were prohibited from holding ministerial office, interfering in internal ecclesiastical government, performing sacerdotal functions of clergy, or censuring the official conduct of a cleric. To permit any such officiousness on the part of church or state officials, Governor John Winthrop averred, “would confound those Jurisdictions, which Christ hath made distinct.”
Although church and state were not to be confounded, however, they were still to be “close and compact.” For, to the Puritans, these two institutions were inextricably linked in nature and in function. Each was an instrument of Godly authority. Each did its part to establish and maintain the community. The Puritans, therefore, readily countenanced the coordination and cooperation of church and state.
State officials provided various forms of material aid to churches and their officials. Public properties were donated to church groups for meeting houses, parsonages, day schools, and orphanages. Tax collectors collected tithes and special assessments to support the ministers and ministry of the congregational church. Tax exemptions and immunities were accorded to some of the religious, educational, and charitable organizations that they operated. Sabbath day laws prohibited all forms of unnecessary labor and uncouth leisure on Sundays and holy days, and required faithful attendance at worship services.
Church officials, in turn, provided various forms of material aid and accommodation to the state. Church meetinghouses and chapels were used not only to conduct religious services, but also to host town assemblies, political rallies, and public auctions, to hold educational and vocational classes, to house the community library, to maintain census rolls and birth, marriage, and death certificates. Church officials . . . preached obedience to the authorities and imposed spiritual discipline on parishioners found guilty of crime. They encouraged their parishioners to be active in political affairs and each year offered “election day sermons” on Christian political principles. They offered learned expositions on the requirements of Godly law, and occasionally offered advice to legislatures and courts.
Puritan leaders of colonial New England left little room for individual religious experimentation. Despite their adherence to a basic separation of the institutions of church and state, the New England authorities insisted on general adherence to the creeds and canons of Puritan Calvinism. Already in the 1630s, dissidents from this faith . . . were summarily dismissed from the colony. Although in the eighteenth century, religious dissidents of many kinds came to be tolerated in the New England colonies, they enjoyed only limited political rights and social opportunities and were subject to a variety of special governmental restrictions, taxes, and other encumbrances.
2. Evangelical Views
Though the evangelical tradition of religious liberty is sometimes traced to the seventeenth century—particularly to Roger Williams, the founder of colonial Rhode Island and William Penn, the founder of Pennsylvania—it did not emerge as a strong political force until after the Great Awakening of circa 1720-1780. Numerous spokesmen for the evangelical cause rose up in the course of the later eighteenth century all along the Atlantic seaboard—Isaac Backus, John Leland, John Wesley, and a host of other pastors and pamphleteers. Though the evangelicals had enjoyed fewer opportunities than the Puritans to institutionalize their views, they nonetheless had a formidable influence on the early American constitutional experiment.
Like the Puritans, the evangelicals advanced a theological theory of religious rights and liberties. They likewise advocated the institutional separation of church and state—the construction of a “wall of Separation between the Garden of the Church and the Wilderness of the world,” to quote Roger Williams. The evangelicals went beyond the Puritans, however, both in their definition of individual and institutional religious rights and in their agitation for a fuller separation of the institutions of church and state. The evangelicals sought to protect the liberty of conscience of every individual and the freedom of association of every religious group. Their solution was thus to prohibit all legal establishments of religion, and, indeed, all admixtures of religion and politics. As John Leland, the fiery Baptist preacher, put it in a proposed amendment to the Massachusetts Constitution:
To prevent the evils that have heretofore been occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics, no religious test shall ever be requested as a qualification of any officer, in any department of this government; neither shall the legislature, under this constitution, ever establish any religion by law, give any one sect a preference to another, or force any man in the commonwealth to part with his property for the support of religious worship, or the maintenance of ministers of the gospel.
Later, Leland put the matter even more bluntly: “The notion of a Christian commonwealth should be exploded forever.”
Religious voluntarism lay at the heart of the evangelical view. Every individual, they argued, must be given the liberty of conscience to choose or to change his or her faith. “[N]othing can be true religion but a voluntary obedience unto [God’s] revealed will,” declared the Baptist Isaac Backus. State coercion or control of this choice—either directly through persecution and forced collection of tithes and services, or indirectly through withholding civil rights and benefits from religious minorities—was an offense both to the individual and to God. A plurality of religions should coexist in the community, and it was for God, not the state, to decide which of these religions should flourish and which should fade. “Religious liberty is a divine right,” wrote the evangelical preacher Israel Evans.
Every religious body was likewise to be free from state control of their assembly and worship, state regulations of their property and polity, state incorporation of their society and clergy, state interference in their discipline and government. Every religious body was also to be free from state emoluments like tax exemptions, civil immunities, property donations, and other forms of state support for the church, that were readily countenanced by Puritan and other leaders. The evangelicals feared state benevolence towards religion and religious bodies almost as much as they feared state repression. For those religious bodies that received state benefits would invariably become beholden to the state, and distracted from their divine mandates. “[I]f civil Rulers go so far out of their Sphere as to take the Care and Management of religious affairs upon them,” reads a 1776 Baptist Declaration, “Yea . . . Farewel to ‘the free exercise of Religion’.”
The chief concern of the evangelicals was theological, not political. Having suffered for more than a century as a religious minority in colonial America, and even longer in Europe, they sought a constitutional means to free all religion from the fetters of the law, to relieve the church from the restrictions of the state. In so doing, they developed only the rudiments of a political theory. They were content with a state that created a climate conducive to the cultivation of a plurality of religions and accommodated all religious believers and religious bodies without conditions or controls.
3. Enlightenment Views
Exponents of the enlightenment tradition in America provided a political theory that complemented the religious rights theology of the evangelicals. Though American exponents of the enlightenment claimed early European visionaries such as John Locke and David Hume, they did not emerge as a significant political voice until the mid-eighteenth century. The American Revolution served to transform the American enlightenment tradition from scattered groups of elite philosophers into a sizeable company of intellectual and political lights. Members of this company, though widely divergent in theological perspective and social position, were united in their efforts to convert enlightenment ideals into constitutional imperatives and in their adherence to the political views of such spokesmen as Thomas Jefferson, Benjamin Franklin, and others.
The primary purpose of enlightenment writers was political, not theological. They sought not only to free religion and the church from the interference of politics and the state, as did the evangelicals, but, more importantly, to free politics and the state from the intrusion of religion and the church. Exponents of the enlightenment movement taught that the state should give no special aid, support, privilege, or protection to organized religion in the form of tax exemptions, special criminal protections, administrative subsidies, or the incorporation of religious bodies. Nor should the state predicate its laws or policies on explicitly religious grounds or religious arguments, or draw on the services of religious officials or bodies to discharge state functions. As Madison put it in 1822: “[A] perfect separation between ecclesiastical and civil matters” is the best course, for “religion & Gov. will both exist in greater purity, the less they are mixed together.” In an 1832 letter to Rev. Jasper Adams, he wrote:
[I]t may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Gov. from interference in any way whatever, beyond the necessity of preserving public order, & protecting each sect ag. trespasses on its legal rights by others.
Such views were based on a profound skepticism about organized religion and a profound fear of an autocratic state. To allow church and state to be unrestricted, it was thought, would be to invite arbitrariness and abuse. To allow them to combine would be to their mutual disadvantage -- to produce, in Thomas Paine’s words, “a sort of mule-animal, capable only of destroying, and not of breeding up.” Such views were also based on the belief that a person is fundamentally an individual being and that religion is primarily a matter of private reason and conscience and only secondarily a matter of communal association and corporate confession. Every person, James Madison wrote, has the right to form a rational opinion about the duty he owes the Creator and the manner in which that duty is to be discharged.
Post-revolutionary Virginia proved to be fertile ground for political exponents of the enlightenment tradition to cultivate these views. Article 16 of the 1776 Virginia Bill of Rights, influenced in part by James Madison, provided:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity, towards each other.
The famous Virginia Statute on Religious Freedom, drafted by Thomas Jefferson in 1777 and ultimately passed in 1786, provided even stronger enlightenment language. The statute begins by celebrating that “Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion.” It then guarantees: “That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”
These lofty protections of individual religious rights went hand-in-hand with the close restrictions on corporate religious rights that were also advocated by enlightenment exponents. For example, before the turn of the nineteenth century, the Virginia legislature outlawed religious corporations (a prohibition still in place in Virginia and West Virginia).
4. Civic Republican Views
The “civic republicans,” as they have come to be called in recent histories, were an eclectic group of politicians, preachers, and pamphleteers who strove to cultivate a set of common values and beliefs for the new nation. Their principal spokesmen were John Adams, Samuel Adams, Oliver Ellsworth, George Washington, James Wilson, and other leaders—though the movement attracted considerable support among the spiritual and intellectual laity of the young republic as well. Just as the enlightenment leaders found their theological allies among the evangelicals, so the republican leaders found their theological allies among the Puritans.
To be sure, the civic republicans shared much common ground with evangelical and enlightenment exponents. They, too, advocated liberty of conscience for all and state support for a plurality of religions in the community. They, too, opposed religious intrusions on politics that rose to the level of political theocracy and political intrusions on religion that rose to the level of religious establishment. But, contrary to evangelical and enlightenment views and consistent with Puritan views, civic republicans sought to imbue the public square with a common religious ethic and ethos—albeit one less denominationally specific and rigorous than that countenanced by the Puritans.
“Religion and Morality are the essential pillars of Civil society,” George Washington declared. “[W]e have no government,” John Adams echoed, “armed with power capable of contending with human passions unbridled by morality and religion.” “Religion and liberty are the meat and the drink of the body politic,” wrote Yale President Timothy Dwight. According to the civic republicans, society needs a fund of religious values and beliefs, a body of civic ideas and ideals that are enforceable both through the common law and through communal suasion. This was what Benjamin Franklin had called the “Publick Religion” (and what is now called the “civil religion”) of America, which undergirded the plurality of sectarian religions. This “Publick Religion” taught a creed of honesty, diligence, devotion, public spiritedness, patriotism, obedience, love of God, neighbor, and self, and other ethical commonplaces taught by various religious traditions at the time of the founding. Its icons were the Bible, the Declaration of Independence, the bells of liberty, and the Constitution. Its clergy were public-spirited Christian ministers and religiously devout politicians. Its liturgy was the proclamations of prayers, songs, sermons, and Thanksgiving Day offerings by statesmen and churchmen. Its policy was government appointment of legislative and military chaplains, government sponsorship of general religious education and organization, and government enforcement of a religiously based morality through positive law.
Civic republicans countenanced state support and accommodation for religious institutions, for they were regarded as allies and agents of good government. “[R]eligion and its institutions are the best aid of government,” declared Nathan Strong, “by strengthening the ruler’s hand, and making the subject faithful in his place, and obedient to the general laws.” Civic republicans, therefore, endorsed tax exemptions for church properties and tax support for religious schools, charities, and missionaries; donations of public lands to religious organizations; and criminal protections against blasphemy, sacrilege, and interruption of religious services. In theory, such state emoluments were to be given indiscriminately to all religious groups. In reality, certain Protestant groups received the preponderance of such support, while Quakers, Catholics, and the few Jewish groups about were routinely excluded.
Post-revolutionary Massachusetts proved to be fertile ground for the cultivation of these civic republican views. The 1780 Constitution of Massachusetts, for example, proclaimed that “[i]t is the right as well as the duty of all men in society, publicly and at stated seasons, to worship the SUPREME BEING, the great Creator and preserver of the universe.” For “the public worship of God and instructions in piety, religion, and morality, promote the happiness and prosperity of a people, and the security of a republican government.”
These civic republican views also found favor in the Continental Congress, which authorized the appointment of tax-supported chaplains to the military, tax appropriations for religious schools and missionaries, diplomatic ties to the Vatican, and recitations of prayer at its opening sessions and during the day of Thanksgiving. The Continental Congress also passed the Northwest Ordinance in 1787, which provided, in part: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
These four views—Puritan, evangelical, enlightenment, and republican—helped to inform the early American experiment in religious rights and liberties. Each view was liberally espoused by federal and state leaders in the early American republic, informally in their letters and pamphlets, and formally in the Constitutional Convention and ratification debates. Each left indelible marks in the documents and developments of early American constitutionalism.
B. The Essential Rights and Liberties of Religion
Despite the tensions among them, exponents of these four groups generally agreed upon what New England Puritan jurist and theologian Elisha Williams called “the essential rights and liberties of [religion].” To be sure, these “essential rights and liberties” never won uniform articulation or universal assent in the young republic. But a number of enduring and interlocking principles found widespread support; many of which were included in state and federal constitutional discussions. These principles included liberty of conscience, free exercise of religion, pluralism, equality, separationism, and disestablishment of religion. Such principles remain at the heart of the American experiment today.
The common goal of these principles was to replace the inherited tradition of religious establishment with a new experiment that rendered religious rights and liberties the “first freedom” of the constitutional order. To be sure, a number of writers were reluctant to extend religious liberty to Catholics and Jews, let alone to Muslims and Indians—and these prejudices are sometimes betrayed in the earliest drafts of the state constitutions. For many eighteenth century writers, the term “religion” was synonymous with Christianity (or even Protestantism), and the discussion of “religious liberty” was often in terms of the “liberty or rights of Christians.” And, to be sure, some Puritans and civic republicans continued to support what John Adams called a “slender” form of congregationalist establishment in some of the New England states—consisting principally of tax collections and preferences for the congregational churches and schools. But such “compromises” do not deprive the early American experiment, and the sentiments that inspired it, of their validity or ongoing utility. By eighteenth century European standards, this experiment was remarkably advanced, and calculated to benefit the vast majority of the population.
Virtually all eighteenth century writers embraced religious liberty as the “first liberty” and the “first freedom.” It is “the most inalienable and sacred of all human rights,” wrote Thomas Jefferson. “Christian liberty, both civil and ecclesiastical, is the greatest blessing of the kind, that we can enjoy,” wrote the congregationalist preacher Jonathan Parsons, “and therefore to be deprived of either, is the greatest injury that we can suffer.” At the same time, virtually all writers denounced the bloody religious establishments of previous eras. James Madison reflected commonplaces of the day when he wrote:
[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry, and persecution. . . . Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion.
1. Liberty of Conscience
Liberty of conscience was the general solvent used in the early American experiment in religious liberty. It was universally embraced in the young republic—even by the most churlish of establishmentarians. The phrase “liberty of conscience” was often conflated with the phrase “free exercise of religion,” “religious freedom,” “religious liberty,” “religious privileges,” or “religious rights.” James Madison, for example, simply rolled into one linguistic heap “religious freedom” or “the free exercise of religion according to the dictates of conscience.” In another passage, he spoke of “religious liberty” as the “religious rights . . . of a multiplicity of sects.” Such patterns of interwoven language appear regularly in later eighteenth century writings; one term often implicated and connoted several others. To read the guarantee of liberty of conscience too dogmatically is to ignore the fluidity of the term in the eighteenth century.
Nonetheless, many eighteenth century writers ascribed distinctive content to the phrase. First, liberty of conscience protected voluntarism -- “the right of private judgment in matters of religion,” the unencumbered ability to choose and to change one’s religious beliefs and adherences. The Puritan jurist Elisha Williams put this matter very strongly for Christians in 1744 (directly contradicting the rigid opinions of his great grandfather John Cotton, a century before):
Every man has an equal right to follow the dictates of his own conscience in the affairs of religion. Every one is under an indispensable obligation to search the Scriptures for himself . . . and to make the best use of it he can for his own information in the will of God, the nature and duties of Christianity.
James Madison wrote more generically in 1785: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” The evangelical leader John Leland echoed these sentiments in 1791. Puritan, enlightenment philosophe, and evangelical alike could agree on this core meaning of liberty of conscience.
Second, and closely related, liberty of conscience prohibited religiously based discrimination against individuals. Persons could not be penalized for the religious choices they made, nor swayed to make certain choices because of the civil advantages attached to them. Liberty of conscience, Ezra Stiles opined, permits “no bloody tribunals, no cardinals inquisitors-general, to bend the human mind, forceably to control the understanding, and put out the light of reason, the candle of the Lord in man.” Liberty of conscience also prohibits more subtle forms of discrimination, prejudice, and cajolery by state, church, or even other citizens. “[N]o part of the community shall be permitted to perplex or harass the other for any supposed heresy,” wrote a Massachusetts pamphleteer, “. . . each individual shall be allowed to have and enjoy, profess and maintain his own system of religion.”
Third, in the view of some eighteenth century writers, liberty of conscience guaranteed “a freedom and exemption from human impositions, and legal restraints, in matters of religion and conscience.” Persons of faith were to be “exempt[ ] from all those penal, sanguinary laws, that generate vice instead of virtue.” Such laws not only included the onerous criminal rules that traditionally encumbered and discriminated against religious nonconformists, and led to fines, whippings, banishments, and occasional executions of dissenting colonists. They also included more facially benign laws that worked injustice to certain religious believers -- conscription laws that required religious pacificists to participate in the military, oath-swearing laws that ran afoul of the religious scruples of certain believers, tithing and taxing laws that forced believers to support churches, schools, and other causes that they found religiously odious. Liberty of conscience required that persons be exempt or immune from civil duties and restrictions that they could not, in good conscience, accept or obey.
It was commonly assumed in the eighteenth century that the laws of conscientious magistrates would not tread on the religious scruples of their subjects. As George Washington put it in a letter to a group of Quakers:
[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.
Where general laws and policies did intrude on the religious scruples of an individual or group, liberty of conscience demanded protection of religious minorities and exemption. Whether such exemptions should be accorded by the legislature or by the judiciary, and whether they were per se a constitutional right or simply a rule of equity -- the principal bones of contention among recent commentators -- the eighteenth century sources at my disposal simply do not clearly say.
All the early state constitutions include a guarantee of liberty of conscience for all. The Delaware Constitution provides typical language:
That all men have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences and understandings; and that no man ought or of right can be compelled to attend any religious worship or maintain any religious ministry contrary to or against his own free will and consent, and that no authority can or ought to be vested in, or assumed by any power whatever that shall in any case interfere with, or in any manner controul [sic] the right of conscience and free exercise of religious worship.
The Pennsylvania Constitution adds a protection against religious discrimination: “Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship.” It also provides an exemption for conscientious objectors: “Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent.” The Constitution of New York addressed both state and church intrusions on conscience, and endeavored
not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind [and thus] declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind.
The Constitution of New Jersey provided exemptions from religious taxes, using typical language: “nor shall any person . . . ever be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any other church . . . or ministry, contrary to what he believes to be right.”
The principle of liberty of conscience also informed some of the federal constitutional debates on religion. Article VI of the Constitution explicitly provides: “[N]o religious Test [oath] shall ever be required as a Qualification” for public office, thereby, inter alia, protecting the religiously scrupulous against oath-swearing. Early versions of the First Amendment religion clauses included such phrases as: “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead”; “The civil rights of none shall be abridged on account of religious belief or worship . . . nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed”; “Congress shall make no law . . . to infringe the rights of conscience.” Such phrases were ultimately abandoned (though not argued against in the extant records) for the more pregnant language: “Congress shall make no law . . . prohibiting the free exercise [of religion].” This language does not leave conscience unprotected, but more protected. Since Congress cannot “prohibit” the free exercise, the public manifestation, of religion, a fortiori Congress cannot “prohibit” a person’s private liberty of conscience, and the precepts embraced therein.
Liberty of conscience was the cardinal principle for the new experiment in religious liberty. Several other “essential rights and liberties of religion” built directly on this core principle.
2. Free Exercise
Liberty of conscience was inextricably linked to free exercise of religion. Liberty of conscience was a guarantee to be left alone to choose, to entertain, and to change one’s religious beliefs. Free exercise of religion was the right to act publicly on the choices of conscience once made, without intruding on or obstructing the rights of others or the general peace of the community. Already in 1670, the Quaker leader William Penn had linked these two guarantees, insisting that religious liberty entails “not only a mere liberty of the mind, in believing or disbelieving . . . but [also] the exercise of ourselves in a visible way of worship.” By the next century, this organic linkage was commonly accepted. Religion, Madison wrote, “must be left to the convictions and conscience of every man; and it is the right of every man to exercise it as these may dictate.” For most eighteenth century writers, religious belief and religious action went hand-in-hand, and each deserved legal protection.
Though eighteenth century writers, or dictionaries, offered no universal definition of “free exercise,” the phrase generally connoted various forms of free public religious action—religious speech, religious worship, religious assembly, religious publication, religious education, among others. Free exercise of religion also embraced the right of the individual to join with like-minded believers in religious societies, which religious societies were free to devise their own modes of worship, articles of faith, standards of discipline, and patterns of ritual. Eighteenth century writers did not speak unequivocally of what we now call group rights, or corporate free exercise rights, but they did regularly call for “ecclesiastical liberty,” “the equal liberty of one sect . . . with another,” and the right “to have the full enjoyment and free exercise of those spiritual powers . . . which, being derived only from CHRIST and His Apostles, are to be maintained, independent of every foreign, or other, jurisdiction, so far as may be consistent with the civil rights of society.”
Virtually all of the early state constitutions guaranteed “free exercise” rights—adding the familiar caveat that such exercise not violate the public peace or the private rights of others. Most states limited their guarantee to “the free exercise of religious worship” or the “free exercise of religious profession”—thereby leaving the protection of other noncultic forms of religious expression and action to other constitutional guarantees. A few states provided more generic free exercise guarantees. Virginia, for example, guaranteed “the free exercise of religion, according to the dictates of conscience”—expanding constitutional protection to cultic and noncultic religious expression and action, provided it was mandated by conscience. The Georgia constitution provided even more flatly: “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.” The First Amendment drafters chose equally embracive language of “the free exercise” of religion. Rather than using the categorical language preferred by state drafters, however, the First Amendment drafters guaranteed protection only against Congressional laws “prohibiting” the free exercise of religion. Whether Congress could make laws “infringing” or “abridging” the free exercise of religion—as earlier drafts sought to outlaw—was left open to subsequent interpretation.
3. Pluralism
Eighteenth century writers regarded “multiplicity,” “diversity,” or “plurality,” as an equally essential dimension of religious rights and liberties. Two kinds of pluralism were distinguished.
Evangelical and enlightenment writers urged the protection of confessional pluralism—the maintenance and accommodation of a plurality of forms of religious expression and organization in the community. Evangelical writers advanced a theological argument for this principle, emphasizing that it was for God, not the state, to decide which forms of religion should flourish and which should fade. “God always claimed it as his sole prerogative to determine by his own laws what his worship shall be, who shall minister in it, and how they shall be supported,” Isaac Backus wrote. Enlightenment writers advanced a rational argument. “Difference of opinion is advantageous in religion,” Thomas Jefferson wrote:
The several sects perform the office of a Censor morum over each other. Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. . . . Reason and persuasion are the only practicable instruments.
Madison wrote similarly that “the utmost freedom . . . arises from that multiplicity of sects which pervades America, . . . for where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest.” Other writers added that the maintenance of multiple faiths is the best protection of the core guarantee of liberty of conscience.
Puritan and civic republican writers insisted as well on the protection of social pluralism—the maintenance and accommodation of a plurality of associations to foster religion. Churches and synagogues were not the only “religious societies” that deserved constitutional protection. Families, schools, charities, and other learned and civic societies were equally vital bastions of religion and equally deserving of the special protections of religious rights and liberties. These diverse social institutions had several redeeming qualities. They provided multiple forums for religious expressions and actions, important bulwarks against state encroachment on natural liberties, particularly religious liberties, and vital sources of theology, morality, charity, and discipline in the state and broader community.
Pluralism was thus not just a sociological fact for several eighteenth century writers; it was a constitutional condition for the guarantee of true religious rights and liberties. This was a species and application of Madison’s argument about pluralism in Federalist Paper No. 10—that the best protection against political tyranny is the guarantee of a multiplicity of interests, each contending for public endorsement and political expression in a federalist republic.
4. Equality
The efficacy of liberty of conscience, free exercise of religion, and confessional pluralism depended on a guarantee of equality of all peaceable religions before the law. For the state to single out one pious person or one form of faith for either preferential benefits or discriminatory burdens would skew the choice of conscience, encumber the exercise of religion, and upset the natural plurality of faiths. Many eighteenth century writers therefore inveighed against the state’s unequal treatment of religion. Madison captured the prevailing sentiment: “A just Government . . . will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.”
This principle of equality of all peaceable religious persons and bodies before the law found its way into a number of early state constitutions. The Constitution of New Jersey insisted that “there shall be no establishment of any one religious sect in . . . preference to another.” Delaware guaranteed Christians “equal rights and privileges” -- a guarantee soon extended to all religions. Maryland insisted that Christians “are equally entitled to protection in their religious liberty.” Virginia guaranteed that “all men are equally entitled to the free exercise of religion.” New York guaranteed all persons “free exercise and enjoyment of religious profession and worship, without discrimination or preference.” Even Massachusetts, which maintained a “slender” establishment, nonetheless guaranteed that “all religious sects and denominations, demeaning themselves peaceably, and as good citizens of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.”
The principle of equality also found its place in early drafts of the First Amendment religion clauses, yielding such phrases as: “nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed”; “Congress shall make no law establishing one religious sect or society in preference to others. . . .”; and “Congress shall make no law establishing any particular denomination of religion in preference to another. . . .” Madison, in fact, regarded protection of the “equal rights of conscience” as the “most valuable” guarantee for religious liberty, and he argued that it should be universally guaranteed at both the federal and state levels. These provisions and arguments were abandoned for the more generic guarantees of disestablishment and free exercise at the federal level—guarantees which presumably are to apply equally to all religions.
5. Separationism
The principle of separationism was designed primarily to protect religious bodies and religious believers in their inherent rights.
On the one hand, separationism guaranteed the independence and integrity of the internal processes of religious bodies. Elisha Williams spoke for many churchmen when he wrote: “ [E]very church has [the] Right to judge in what manner God is to be worshipped by them, and what Form of Discipline ought to be observed by them, and the Right also of electing their own Officers.” In the mind of most eighteenth century writers, the principle of separation of church and state mandated neither the separation of religion and politics nor the secularization of civil society. No eighteenth century writer would countenance the preclusion of religion altogether from the public square or the political process. The principle of separationism was directed to the institutions of church and state, not to religion and culture.
On the other hand, the principle of separationism also protected the liberty of conscience of the religious believer. President Thomas Jefferson, for example, in his famous 1802 Letter to the Danbury Baptist Association, tied the principle of separationism directly to the principle of liberty of conscience:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
Separationism thus assured individuals of their natural, inalienable right of conscience, which could be exercised freely and fully to the point of breaching the peace or shirking social duties. Jefferson is not talking here of separating politics and religion. Indeed, in the very next paragraph of his letter, President Jefferson performed an avowedly religious act of offering prayers on behalf of his Baptist correspondents: “I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man. . . .”
The principles of pluralism, equality, and separationism—separately and together—served to protect religious bodies, both from each other and from the state. It was an open question, however, whether such principles precluded governmental financial and other forms of support of religion altogether. Evangelical and enlightenment writers sometimes viewed such principles as a firm bar on state support, particularly financial support, of religious beliefs, believers, and bodies.
Puritan and republican writers often viewed such principles only as a prohibition against direct financial support for the religious worship or exercise of one particular religious group. General governmental support for religion—in the form of tax exemptions to religious properties, land grants and tax subsidies to religious schools and charities, tax appropriations for missionaries and military chaplains, and similar general causes—were considered not only licit, but necessary for good governance.
6. Disestablishment
For some eighteenth century writers, particularly the New England Puritans who defended their “slender establishments,” the roll of “essential rights and liberties” ended here. For other writers, however, the best protection of all these principles was through the explicit disestablishment of religion. The term “establishment of religion” was a decidedly ambiguous phrase—in the eighteenth century, as much as today. The phrase was variously used to describe compromises of the principles of separationism, pluralism, equality, free exercise, and/or liberty of conscience. The guarantee of “disestablishment of religion” could signify protection against any such compromise.
According to some eighteenth century writers, the guarantee of disestablishment protected separationism. In Jefferson’s words, it prohibited government
from intermeddling with religious institutions, their doctrines, discipline, or exercises. . . . [and from] the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own peculiar tenets. . . .
This view of disestablishment of religion was posed in the penultimate draft of the establishment clause: “Congress shall make no law establishing articles of faith or a mode of worship . . . .”—a provision rejected for a mere generic guarantee.
For other eighteenth century writers, the guarantee of disestablishment protected the principles of equality and pluralism by preventing government from singling out certain religious beliefs and bodies for preferential treatment. This concept of disestablishment came through repeatedly in both state and federal constitutional debates.
For still others, disestablishment of religion meant foreclosing government from coercively prescribing mandatory forms of religious belief, doctrine, and practice -- in violation of the core guarantee of liberty of conscience. Such coercion of religion inflates the competence of government.
Such coercion of religion also compromises the pacific ideals of most religions. Thomas Paine, who is usually branded as a religious skeptic, put this well:
All religions are in their nature mild and benign, and united with principles of morality. They could not have made proselytes at first, by professing anything that was vicious, cruel, persecuting, or immoral. . . . Persecution is not an original feature in any religion; but it is always the strongly marked feature of all law-religions, or religions established by law. Take away the law-establishment, and every religion reassumes its original benignity.
Such coercion of religion also compromises the individual’s liberty of conscience. As the Pennsylvania Constitution put it: “[N]o authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul [sic], the right of conscience in the free exercise of religious worship.”
The vague language of the First Amendment—“Congress shall make no law respecting an establishment”—could readily accommodate these separationist, equality, or noncoercion readings of “disestablishment.” Congress may not “establish religion” outright. Nor may Congress make laws that “respect” an establishment of religion—that is anticipate, “look towards,” or “regard with deference,” such an establishment, to use common eighteenth century definitions of “respecting.” The best way to assess whether a Congressional law violates this prohibition is to see whether it compromises any one of the cardinal principles of separationism, equality, and noncoercion protected by the disestablishment guarantee.
7. Interdependence and Incorporation of Principles
For all the diversity of opinion one finds in the Constitutional Convention debates, pamphlets, sermons, editorials, and broadsides of the eighteenth century, most influential writers embraced this roll of “essential rights and liberties of religion”—liberty of conscience, free exercise of religion, pluralism, equality, separationism, and disestablishment of religion. To be sure, many of these terms carried multiple meanings in the later eighteenth century. And to be sure, numerous other terms and norms were under discussion. But in the range of official and unofficial sources at my disposal, these principles were the most commonly discussed and embraced.
On the one hand, eighteenth century writers designed these principles to provide an interwoven shield against repressive religious establishments. Liberty of conscience protected the individual from coercion and discriminatory treatment by church or state officials and guaranteed unencumbered, voluntary choices of faith. Free exercise of religion protected the individual’s ability to discharge the duties of conscience through religious worship, speech, publication, assembly, and other actions without necessary reference to a prescribed creed, cult, or code of conduct. Pluralism protected multiple forms and forums of religious belief and action, in place of a uniformly mandated religious doctrine, liturgy, and polity. Equality protected religious individuals and bodies from special benefits and from special burdens administered by the state, or by other religious bodies. Separationism protected individual believers, as well as religious and political officials, from undue interference or intrusion on each other’s processes and practices. Disestablishment precluded governmental prescriptions of the doctrine, liturgy, or morality of one faith, or compromises of the principles of liberty of conscience, free exercise, equality, pluralism, or separationism.
On the other hand, eighteenth century writers designed these principles to be mutually supportive and mutually subservient to the highest goal of guaranteeing “the essential rights and liberties of religion” for all. No single principle could by itself guarantee such religious liberty. Eighteenth century writers, therefore, arranged these multiple principles into an interlocking and interdependent shield of religious liberties and rights for all. Religion was simply too vital and too valuable a source of individual flourishing and social cohesion to be left unguarded on any side.
It is in the context of this plurality of opinions and panoply of principles that the First Amendment religion clauses should, in my view, be understood. The religion clauses were a vital, but only a small, part of this initial constitutional protection of essential rights and liberties of religion. They bound only the national government, and (on their face) set only the outer boundaries to its conduct vis-’a-vis religion—forbidding either prescriptions or proscriptions of religion. The religion clauses, together, were designed to legitimate, and to live off, the state constitutional guarantees of religious rights and liberties. The guarantees of disestablishment and free exercise depended for their efficacy both on each other and on other religious rights and liberties that eighteenth century writers regarded as “essential.” The guarantees of disestablishment and free exercise standing alone—as they came to be during the 1940s when the Supreme Court “incorporated” these two guarantees into the due process clause of the Fourteenth Amendment—could legitimately be read to have multiple principles incorporated within them.
Indeed, it might not be too strong to say that the “first incorporation” of religious rights and liberties was engineered not by the Supreme Court in the 1940s when it incorporated the religion clauses into the due process clause, but by the First Congress in 1789 when it drafted the First Amendment religion clauses. This “first incorporation”—if it can be so called—had two dimensions. First, the pregnant language that “Congress shall make no law respecting an establishment of religion” can be read as a confirmation and incorporation of prevailing state constitutional precepts and practices. Such state practices included “the slender establishments” of religion in the New England states, which nonetheless included ample guarantees of liberty of conscience, free exercise, equality, plurality, and institutional separation of church and state. Such practices also included the “establishments of religious freedom” (in Jefferson’s phrase of 1779) that prevailed in Virginia and other southern and middle states. The First Amendment drafters seem to have contemplated and confirmed a plurality of constitutional constructions “respecting” religion and its establishment. Second, the embracive terms “free exercise” and “establishment” can be read to incorporate the full range of “essential rights and liberties” discussed in the eighteenth century. Eighteenth century writers often used the term “free exercise” synonymously with liberty of conscience, equality, separationism, and pluralism. They similarly regarded “non” or “disestablishment” as a generic guarantee of separationism, pluralism, equality, free exercise, and liberty of conscience. Read in context, therefore, the cryptic religion clauses of the First Amendment can be seen to embody—to incorporate—multiple expressions of the “essential rights and liberties of religion.”
A Letter Concerning Toleration
John Locke (1689)
Translated by William Popple
Honoured Sir,
Since you are pleased to inquire what are my thoughts about the mutual toleration of Christians in their different professions of religion, I must needs answer you freely that I esteem that toleration to be the chief characteristic mark of the true Church. . . .
The toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ, and to the genuine reason of mankind, that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light. I will not here tax the pride and ambition of some, the passion and uncharitable zeal of others. These are faults from which human affairs can perhaps scarce ever be perfectly freed; but yet such as nobody will bear the plain imputation of, without covering them with some specious colour; and so pretend to commendation, whilst they are carried away by their own irregular passions. But, however, that some may not colour their spirit of persecution and unchristian cruelty with a pretence of care of the public weal and observation of the laws; and that others, under pretence of religion, may not seek impunity for their libertinism and licentiousness; in a word, that none may impose either upon himself or others, by the pretences of loyalty and obedience to the prince, or of tenderness and sincerity in the worship of God; I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that will be always arising between those that have, or at least pretend to have, on the one side, a concernment for the interest of men's souls, and, on the other side, a care of the commonwealth. The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests. Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.
It is the duty of the civil magistrate, by the impartial execution of equal laws, to secure unto all the people in general and to every one of his subjects in particular the just possession of these things belonging to this life. If anyone presume to violate the laws of public justice and equity, established for the preservation of those things, his presumption is to be checked by the fear of punishment, consisting of the deprivation or diminution of those civil interests, or goods, which otherwise he might and ought to enjoy. But seeing no man does willingly suffer himself to be punished by the deprivation of any part of his goods, and much less of his liberty or life, therefore, is the magistrate armed with the force and strength of all his subjects, in order to the punishment of those that violate any other man's rights.
Now that the whole jurisdiction of the magistrate reaches only to these civil concernments, and that all civil power, right and dominion, is bounded and confined to the only care of promoting these things; and that it neither can nor ought in any manner to be extended to the salvation of souls, these following considerations seem unto me abundantly to demonstrate.
First, because the care of souls is not committed to the civil magistrate, any more than to other men. It is not committed unto him, I say, by God; because it appears not that God has ever given any such authority to one man over another as to compel anyone to his religion. Nor can any such power be vested in the magistrate by the consent of the people, because no man can so far abandon the care of his own salvation as blindly to leave to the choice of any other, whether prince or subject, to prescribe to him what faith or worship he shall embrace. For no man can, if he would, conform his faith to the dictates of another. All the life and power of true religion consist in the inward and full persuasion of the mind; and faith is not faith without believing. Whatever profession we make, to whatever outward worship we conform, if we are not fully satisfied in our own mind that the one is true and the other well pleasing unto God, such profession and such practice, far from being any furtherance, are indeed great obstacles to our salvation. For in this manner, instead of expiating other sins by the exercise of religion, I say, in offering thus unto God Almighty such a worship as we esteem to be displeasing unto Him, we add unto the number of our other sins those also of hypocrisy and contempt of His Divine Majesty.
In the second place, the care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force. Confiscation of estate, imprisonment, torments, nothing of that nature can have any such efficacy as to make men change the inward judgement that they have framed of things.
It may indeed be alleged that the magistrate may make use of arguments, and, thereby; draw the heterodox into the way of truth, and procure their salvation. I grant it; but this is common to him with other men. In teaching, instructing, and redressing the erroneous by reason, he may certainly do what becomes any good man to do. Magistracy does not oblige him to put off either humanity or Christianity; but it is one thing to persuade, another to command; one thing to press with arguments, another with penalties. This civil power alone has a right to do; to the other, goodwill is authority enough. Every man has commission to admonish, exhort, convince another of error, and, by reasoning, to draw him into truth; but to give laws, receive obedience, and compel with the sword, belongs to none but the magistrate. And, upon this ground, I affirm that the magistrate's power extends not to the establishing of any articles of faith, or forms of worship, by the force of his laws. For laws are of no force at all without penalties, and penalties in this case are absolutely impertinent, because they are not proper to convince the mind. Neither the profession of any articles of faith, nor the conformity to any outward form of worship (as has been already said), can be available to the salvation of souls, unless the truth of the one and the acceptableness of the other unto God be thoroughly believed by those that so profess and practise. But penalties are no way capable to produce such belief. It is only light and evidence that can work a change in men's opinions; which light can in no manner proceed from corporal sufferings, or any other outward penalties.
In the third place, the care of the salvation of men's souls cannot belong to the magistrate; because, though the rigour of laws and the force of penalties were capable to convince and change men's minds, yet would not that help at all to the salvation of their souls. For there being but one truth, one way to heaven, what hope is there that more men would be led into it if they had no rule but the religion of the court and were put under the necessity to quit the light of their own reason, and oppose the dictates of their own consciences, and blindly to resign themselves up to the will of their governors and to the religion which either ignorance, ambition, or superstition had chanced to establish in the countries where they were born? In the variety and contradiction of opinions in religion, wherein the princes of the world are as much divided as in their secular interests, the narrow way would be much straitened; one country alone would be in the right, and all the rest of the world put under an obligation of following their princes in the ways that lead to destruction; and that which heightens the absurdity, and very ill suits the notion of a Deity, men would owe their eternal happiness or misery to the places of their nativity.
These considerations, to omit many others that might have been urged to the same purpose, seem unto me sufficient to conclude that all the power of civil government relates only to men's civil interests, is confined to the care of the things of this world, and hath nothing to do with the world to come.
Let us now consider what a church is. A church, then, I take to be a voluntary society of men, joining themselves together of their own accord in order to the public worshipping of God in such manner as they judge acceptable to Him, and effectual to the salvation of their souls.
I say it is a free and voluntary society. Nobody is born a member of any church; otherwise the religion of parents would descend unto children by the same right of inheritance as their temporal estates, and everyone would hold his faith by the same tenure he does his lands, than which nothing can be imagined more absurd. Thus, therefore, that matter stands. No man by nature is bound unto any particular church or sect, but everyone joins himself voluntarily to that society in which he believes he has found that profession and worship which is truly acceptable to God. The hope of salvation, as it was the only cause of his entrance into that communion, so it can be the only reason of his stay there. For if afterwards he discover anything either erroneous in the doctrine or incongruous in the worship of that society to which he has joined himself, why should it not be as free for him to go out as it was to enter? No member of a religious society can be tied with any other bonds but what proceed from the certain expectation of eternal life. A church, then, is a society of members voluntarily uniting to that end.
It follows now that we consider what is the power of this church and unto what laws it is subject. Forasmuch as no society, how free soever, or upon whatsoever slight occasion instituted, whether of philosophers for learning, of merchants for commerce, or of men of leisure for mutual conversation and discourse, no church or company, I say, can in the least subsist and hold together, but will presently dissolve and break in pieces, unless it be regulated by some laws, and the members all consent to observe some order. Place and time of meeting must be agreed on; rules for admitting and excluding members must be established; distinction of officers, and putting things into a regular course, and suchlike, cannot be omitted. But since the joining together of several members into this church-society, as has already been demonstrated, is absolutely free and spontaneous, it necessarily follows that the right of making its laws can belong to none but the society itself; or, at least (which is the same thing), to those whom the society by common consent has authorised thereunto. . . .
The end of a religious society (as has already been said) is the public worship of God and, by means thereof, the acquisition of eternal life. All discipline ought, therefore, to tend to that end, and all ecclesiastical laws to be thereunto confined. Nothing ought nor can be transacted in this society relating to the possession of civil and worldly goods. No force is here to be made use of upon any occasion whatsoever. For force belongs wholly to the civil magistrate, and the possession of all outward goods is subject to his jurisdiction.
But, it may be asked, by what means then shall ecclesiastical laws be established, if they must be thus destitute of all compulsive power? I answer: They must be established by means suitable to the nature of such things, whereof the external profession and observation — if not proceeding from a thorough conviction and approbation of the mind — is altogether useless and unprofitable. The arms by which the members of this society are to be kept within their duty are exhortations, admonitions, and advices. If by these means the offenders will not be reclaimed, and the erroneous convinced, there remains nothing further to be done but that such stubborn and obstinate persons, who give no ground to hope for their reformation, should be cast out and separated from the society. This is the last and utmost force of ecclesiastical authority. No other punishment can thereby be inflicted than that, the relation ceasing between the body and the member which is cut off. The person so condemned ceases to be a part of that church.
These things being thus determined, let us inquire, in the next place: How far the duty of toleration extends, and what is required from everyone by it?
And, first, I hold that no church is bound, by the duty of toleration, to retain any such person in her bosom as, after admonition, continues obstinately to offend against the laws of the society. For, these being the condition of communion and the bond of the society, if the breach of them were permitted without any animadversion the society would immediately be thereby dissolved. But, nevertheless, in all such cases care is to be taken that the sentence of excommunication, and the execution thereof, carry with it no rough usage of word or action whereby the ejected person may any wise be damnified in body or estate. For all force (as has often been said) belongs only to the magistrate, nor ought any private persons at any time to use force, unless it be in self-defence against unjust violence. Excommunication neither does, nor can, deprive the excommunicated person of any of those civil goods that he formerly possessed. All those things belong to the civil government and are under the magistrate's protection. The whole force of excommunication consists only in this: that, the resolution of the society in that respect being declared, the union that was between the body and some member comes thereby to be dissolved; and, that relation ceasing, the participation of some certain things which the society communicated to its members, and unto which no man has any civil right, comes also to cease. For there is no civil injury done unto the excommunicated person by the church minister's refusing him that bread and wine, in the celebration of the Lord's Supper, which was not bought with his but other men's money.
Secondly, no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion. All the rights and franchises that belong to him as a man, or as a denizen, are inviolably to be preserved to him. These are not the business of religion. No violence nor injury is to be offered him, whether he be Christian or Pagan. Nay, we must not content ourselves with the narrow measures of bare justice; charity, bounty, and liberality must be added to it. This the Gospel enjoins, this reason directs, and this that natural fellowship we are born into requires of us. If any man err from the right way, it is his own misfortune, no injury to thee; nor therefore art thou to punish him in the things of this life because thou supposest he will be miserable in that which is to come.
What I say concerning the mutual toleration of private persons differing from one another in religion, I understand also of particular churches which stand, as it were, in the same relation to each other as private persons among themselves: nor has any one of them any manner of jurisdiction over any other; no, not even when the civil magistrate (as it sometimes happens) comes to be of this or the other communion. For the civil government can give no new right to the church, nor the church to the civil government. So that, whether the magistrate join himself to any church, or separate from it, the church remains always as it was before — a free and voluntary society. It neither requires the power of the sword by the magistrate's coming to it, nor does it lose the right of instruction and excommunication by his going from it. This is the fundamental and immutable right of a spontaneous society — that it has power to remove any of its members who transgress the rules of its institution; but it cannot, by the accession of any new members, acquire any right of jurisdiction over those that are not joined with it. And therefore peace, equity, and friendship are always mutually to be observed by particular churches, in the same manner as by private persons, without any pretence of superiority or jurisdiction over one another.
. . . It is in vain for an unbeliever to take up the outward show of another man's profession. Faith only and inward sincerity are the things that procure acceptance with God. The most likely and most approved remedy can have no effect upon the patient, if his stomach reject it as soon as taken; and you will in vain cram a medicine down a sick man's throat, which his particular constitution will be sure to turn into poison. In a word, whatsoever may be doubtful in religion, yet this at least is certain, that no religion which I believe not to be true can be either true or profitable unto me. In vain, therefore, do princes compel their subjects to come into their Church communion, under pretence of saving their souls. If they believe, they will come of their own accord, if they believe not, their coming will nothing avail them. How great soever, in fine, may be the pretence of good-will and charity, and concern for the salvation of men's souls, men cannot be forced to be saved whether they will or no. And therefore, when all is done, they must be left to their own consciences.
Having thus at length freed men from all dominion over one another in matters of religion, let us now consider what they are to do. All men know and acknowledge that God ought to be publicly worshipped; why otherwise do they compel one another unto the public assemblies? Men, therefore, constituted in this liberty are to enter into some religious society, that they meet together, not only for mutual edification, but to own to the world that they worship God and offer unto His Divine Majesty such service as they themselves are not ashamed of and such as they think not unworthy of Him, nor unacceptable to Him; and, finally, that by the purity of doctrine, holiness of life, and decent form of worship, they may draw others unto the love of the true religion, and perform such other things in religion as cannot be done by each private man apart.
These religious societies I call Churches; and these, I say, the magistrate ought to tolerate, for the business of these assemblies of the people is nothing but what is lawful for every man in particular to take care of — I mean the salvation of their souls; nor in this case is there any difference between the National Church and other separated congregations.
But as in every Church there are two things especially to be considered — the outward form and rites of worship, and the doctrines and articles of things must be handled each distinctly that so the whole matter of toleration may the more clearly be understood.
Concerning outward worship, I say, in the first place, that the magistrate has no power to enforce by law, either in his own Church, or much less in another, the use of any rites or ceremonies whatsoever in the worship of God. And this, not only because these Churches are free societies, but because whatsoever is practised in the worship of God is only so far justifiable as it is believed by those that practise it to be acceptable unto Him. Whatsoever is not done with that assurance of faith is neither well in itself, nor can it be acceptable to God. To impose such things, therefore, upon any people, contrary to their own judgment, is in effect to command them to offend God, which, considering that the end of all religion is to please Him, and that liberty is essentially necessary to that end, appears to be absurd beyond expression.
But perhaps it may be concluded from hence that I deny unto the magistrate all manner of power about indifferent things, which, if it be not granted, the whole subject-matter of law-making is taken away. No, I readily grant that indifferent things, and perhaps none but such, are subjected to the legislative power. But it does not therefore follow that the magistrate may ordain whatsoever he pleases concerning anything that is indifferent. The public good is the rule and measure of all law-making. If a thing be not useful to the commonwealth, though it be never so indifferent, it may not presently be established by law.
And further, things never so indifferent in their own nature, when they are brought into the Church and worship of God, are removed out of the reach of the magistrate's jurisdiction, because in that use they have no connection at all with civil affairs. The only business of the Church is the salvation of souls, and it no way concerns the commonwealth, or any member of it, that this or the other ceremony be there made use of. Neither the use nor the omission of any ceremonies in those religious assemblies does either advantage or prejudice the life, liberty, or estate of any man. For example, let it be granted that the washing of an infant with water is in itself an indifferent thing, let it be granted also that the magistrate understand such washing to be profitable to the curing or preventing of any disease the children are subject unto, and esteem the matter weighty enough to be taken care of by a law. In that case he may order it to be done. But will any one therefore say that a magistrate has the same right to ordain by law that all children shall be baptised by priests in the sacred font in order to the purification of their souls? The extreme difference of these two cases is visible to every one at first sight. Or let us apply the last case to the child of a Jew, and the thing speaks itself. For what hinders but a Christian magistrate may have subjects that are Jews? Now, if we acknowledge that such an injury may not be done unto a Jew as to compel him, against his own opinion, to practise in his religion a thing that is in its nature indifferent, how can we maintain that anything of this kind may be done to a Christian? . . .
But it will be here asked: “If nothing belonging to divine worship be left to human discretion, how is it then that Churches themselves have the power of ordering anything about the time and place of worship and the like?” To this I answer that in religious worship we must distinguish between what is part of the worship itself and what is but a circumstance. That is a part of the worship which is believed to be appointed by God and to be well-pleasing to Him, and therefore that is necessary. Circumstances are such things which, though in general they cannot be separated from worship, yet the particular instances or modifications of them are not determined, and therefore they are indifferent. Of this sort are the time and place of worship, habit and posture of him that worships. These are circumstances, and perfectly indifferent, where God has not given any express command about them. For example: amongst the Jews the time and place of their worship and the habits of those that officiated in it were not mere circumstances, but a part of the worship itself, in which, if anything were defective, or different from the institution, they could not hope that it would be accepted by God. But these, to Christians under the liberty of the Gospel, are mere circumstances of worship, which the prudence of every Church may bring into such use as shall be judged most subservient to the end of order, decency, and edification. But, even under the Gospel, those who believe the first or the seventh day to be set apart by God, and consecrated still to His worship, to them that portion of time is not a simple circumstance, but a real part of Divine worship, which can neither be changed nor neglected.
In the next place: As the magistrate has no power to impose by his laws the use of any rites and ceremonies in any Church, so neither has he any power to forbid the use of such rites and ceremonies as are already received, approved, and practised by any Church; because, if he did so, he would destroy the Church itself: the end of whose institution is only to worship God with freedom after its own manner.
You will say, by this rule, if some congregations should have a mind to sacrifice infants, or (as the primitive Christians were falsely accused) lustfully pollute themselves in promiscuous uncleanness, or practise any other such heinous enormities, is the magistrate obliged to tolerate them, because they are committed in a religious assembly? I answer: No. These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God, or in any religious meeting. But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf, I deny that that ought to be prohibited by a law. Meliboeus, whose calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man's goods. And for the same reason he may kill his calf also in a religious meeting. Whether the doing so be well-pleasing to God or no, it is their part to consider that do it. The part of the magistrate is only to take care that the commonwealth receive no prejudice, and that there be no injury done to any man, either in life or estate. And thus what may be spent on a feast may be spent on a sacrifice. But if peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while, in order to the increasing of the stock of cattle that had been destroyed by some extraordinary murrain, who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed that, in this case, the law is not made about a religious, but a political matter; nor is the sacrifice, but the slaughter of calves, thereby prohibited.
By this we see what difference there is between the Church and the Commonwealth. Whatsoever is lawful in the Commonwealth cannot be prohibited by the magistrate in the Church. Whatsoever is permitted unto any of his subjects for their ordinary use, neither can nor ought to be forbidden by him to any sect of people for their religious uses. If any man may lawfully take bread or wine, either sitting or kneeling in his own house, the law ought not to abridge him of the same liberty in his religious worship; though in the Church the use of bread and wine be very different and be there applied to the mysteries of faith and rites of Divine worship. But those things that are prejudicial to the commonweal of a people in their ordinary use and are, therefore, forbidden by laws, those things ought not to be permitted to Churches in their sacred rites. Only the magistrate ought always to be very careful that he do not misuse his authority to the oppression of any Church, under pretence of public good.
It may be said: “What if a Church be idolatrous, is that also to be tolerated by the magistrate?” I answer: What power can be given to the magistrate for the suppression of an idolatrous Church, which may not in time and place be made use of to the ruin of an orthodox one? For it must be remembered that the civil power is the same everywhere, and the religion of every prince is orthodox to himself. . . .
But idolatry, say some, is a sin and therefore not to be tolerated. If they said it were therefore to be avoided, the inference were good. But it does not follow that because it is a sin it ought therefore to be punished by the magistrate. For it does not belong unto the magistrate to make use of his sword in punishing everything, indifferently, that he takes to be a sin against God. Covetousness, uncharitableness, idleness, and many other things are sins by the consent of men, which yet no man ever said were to be punished by the magistrate. The reason is because they are not prejudicial to other men's rights, nor do they break the public peace of societies. Nay, even the sins of lying and perjury are nowhere punishable by laws; unless, in certain cases, in which the real turpitude of the thing and the offence against God are not considered, but only the injury done unto men's neighbours and to the commonwealth. And what if in another country, to a Mahometan or a Pagan prince, the Christian religion seem false and offensive to God; may not the Christians for the same reason, and after the same manner, be extirpated there? . . .
Further, the magistrate ought not to forbid the preaching or professing of any speculative opinions in any Church because they have no manner of relation to the civil rights of the subjects. If a Roman Catholic believe that to be really the body of Christ which another man calls bread, he does no injury thereby to his neighbour. If a Jew do not believe the New Testament to be the Word of God, he does not thereby alter anything in men's civil rights. If a heathen doubt of both Testaments, he is not therefore to be punished as a pernicious citizen. The power of the magistrate and the estates of the people may be equally secure whether any man believe these things or no. I readily grant that these opinions are false and absurd. But the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth and of every particular man's goods and person. And so it ought to be. For the truth certainly would do well enough if she were once left to shift for herself. She seldom has received and, I fear, never will receive much assistance from the power of great men, to whom she is but rarely known and more rarely welcome. She is not taught by laws, nor has she any need of force to procure her entrance into the minds of men. Errors, indeed, prevail by the assistance of foreign and borrowed succours. But if Truth makes not her way into the understanding by her own light, she will be but the weaker for any borrowed force violence can add to her. Thus much for speculative opinions. Let us now proceed to practical ones.
A good life, in which consist not the least part of religion and true piety, concerns also the civil government; and in it lies the safety both of men's souls and of the commonwealth. Moral actions belong, therefore, to the jurisdiction both of the outward and inward court; both of the civil and domestic governor; I mean both of the magistrate and conscience. Here, therefore, is great danger, lest one of these jurisdictions intrench upon the other, and discord arise between the keeper of the public peace and the overseers of souls. But if what has been already said concerning the limits of both these governments be rightly considered, it will easily remove all difficulty in this matter.
Every man has an immortal soul, capable of eternal happiness or misery; whose happiness depending upon his believing and doing those things in this life which are necessary to the obtaining of God's favour, and are prescribed by God to that end. It follows from thence, first, that the observance of these things is the highest obligation that lies upon mankind and that our utmost care, application, and diligence ought to be exercised in the search and performance of them; because there is nothing in this world that is of any consideration in comparison with eternity. Secondly, that seeing one man does not violate the right of another by his erroneous opinions and undue manner of worship, nor is his perdition any prejudice to another man's affairs, therefore, the care of each man's salvation belongs only to himself. But I would not have this understood as if I meant hereby to condemn all charitable admonitions and affectionate endeavours to reduce men from errors, which are indeed the greatest duty of a Christian. Any one may employ as many exhortations and arguments as he pleases, towards the promoting of another man's salvation. But all force and compulsion are to be forborne. Nothing is to be done imperiously. Nobody is obliged in that matter to yield obedience unto the admonitions or injunctions of another, further than he himself is persuaded. Every man in that has the supreme and absolute authority of judging for himself. And the reason is because nobody else is concerned in it, nor can receive any prejudice from his conduct therein.
But besides their souls, which are immortal, men have also their temporal lives here upon earth; the state whereof being frail and fleeting, and the duration uncertain, they have need of several outward conveniences to the support thereof, which are to be procured or preserved by pains and industry. For those things that are necessary to the comfortable support of our lives are not the spontaneous products of nature, nor do offer themselves fit and prepared for our use. This part, therefore, draws on another care and necessarily gives another employment. But the pravity of mankind being such that they had rather injuriously prey upon the fruits of other men's labours than take pains to provide for themselves, the necessity of preserving men in the possession of what honest industry has already acquired and also of preserving their liberty and strength, whereby they may acquire what they farther want, obliges men to enter into society with one another, that by mutual assistance and joint force they may secure unto each other their properties, in the things that contribute to the comfort and happiness of this life, leaving in the meanwhile to every man the care of his own eternal happiness, the attainment whereof can neither be facilitated by another man's industry, nor can the loss of it turn to another man's prejudice, nor the hope of it be forced from him by any external violence. But, forasmuch as men thus entering into societies, grounded upon their mutual compacts of assistance for the defence of their temporal goods, may, nevertheless, be deprived of them, either by the rapine and fraud of their fellow citizens, or by the hostile violence of foreigners, the remedy of this evil consists in arms, riches, and multitude of citizens; the remedy of the other in laws; and the care of all things relating both to one and the other is committed by the society to the civil magistrate. This is the original, this is the use, and these are the bounds of the legislative (which is the supreme) power in every commonwealth. I mean that provision may be made for the security of each man's private possessions; for the peace, riches, and public commodities of the whole people; and, as much as possible, for the increase of their inward strength against foreign invasions.
These things being thus explained, it is easy to understand to what end the legislative power ought to be directed and by what measures regulated; and that is the temporal good and outward prosperity of the society; which is the sole reason of men's entering into society, and the only thing they seek and aim at in it. And it is also evident what liberty remains to men in reference to their eternal salvation, and that is that every one should do what he in his conscience is persuaded to be acceptable to the Almighty, on whose good pleasure and acceptance depends their eternal happiness. For obedience is due, in the first place, to God and, afterwards to the laws.
But some may ask: “What if the magistrate should enjoin anything by his authority that appears unlawful to the conscience of a private person?” I answer that, if government be faithfully administered and the counsels of the magistrates be indeed directed to the public good, this will seldom happen. But if, perhaps, it do so fall out, I say, that such a private person is to abstain from the action that he judges unlawful, and he is to undergo the punishment which it is not unlawful for him to bear. For the private judgement of any person concerning a law enacted in political matters, for the public good, does not take away the obligation of that law, nor deserve a dispensation. But if the law, indeed, be concerning things that lie not within the verge of the magistrate’s authority (as, for example, that the people, or any party amongst them, should be compelled to embrace a strange religion, and join in the worship and ceremonies of another Church), men are not in these cases obliged by that law, against their consciences. For the political society is instituted for no other end, but only to secure every man's possession of the things of this life. The care of each man's soul and of the things of heaven, which neither does belong to the commonwealth nor can be subjected to it, is left entirely to every man’s self. Thus the safeguard of men's lives and of the things that belong unto this life is the business of the commonwealth; and the preserving of those things unto their owners is the duty of the magistrate. And therefore the magistrate cannot take away these worldly things from this man or party and give them to that; nor change propriety amongst fellow subjects (no not even by a law), for a cause that has no relation to the end of civil government, I mean for their religion, which whether it be true or false does no prejudice to the worldly concerns of their fellow subjects, which are the things that only belong unto the care of the commonwealth.
But what if the magistrate believe such a law as this to be for the public good? I answer: As the private judgement of any particular person, if erroneous, does not exempt him from the obligation of law, so the private judgement (as I may call it) of the magistrate does not give him any new right of imposing laws upon his subjects, which neither was in the constitution of the government granted him, nor ever was in the power of the people to grant, much less if he make it his business to enrich and advance his followers and fellow-sectaries with the spoils of others. But what if the magistrate believe that he has a right to make such laws and that they are for the public good, and his subjects believe the contrary? Who shall be judge between them? I answer: God alone. For there is no judge upon earth between the supreme magistrate and the people. God, I say, is the only judge in this case, who will retribute unto every one at the last day according to his deserts; that is, according to his sincerity and uprightness in endeavouring to promote piety, and the public weal, and peace of mankind. But What shall be done in the meanwhile? I answer: The principal and chief care of every one ought to be of his own soul first, and, in the next place, of the public peace; though yet there are very few will think it is peace there, where they see all laid waste. . . .
Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration. As for other practical opinions, though not absolutely free from all error, if they do not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated. . . .
It is not the diversity of opinions (which cannot be avoided), but the refusal of toleration to those that are of different opinions (which might have been granted), that has produced all the bustles and wars that have been in the Christian world upon account of religion. The heads and leaders of the Church, moved by avarice and insatiable desire of dominion, making use of the immoderate ambition of magistrates and the credulous superstition of the giddy multitude, have incensed and animated them against those that dissent from themselves, by preaching unto them, contrary to the laws of the Gospel and to the precepts of charity, that schismatics and heretics are to be outed of their possessions and destroyed. And thus have they mixed together and confounded two things that are in themselves most different, the Church and the commonwealth. . . .