X. The atmosphere in Massachusetts begins to shift toward toleration and even freedom of tolerance; the second Massachusetts charter which provided for freedom of conscience to all Christians except Papists was secured in 1691; nonetheless, only in Boston was freedom of conscience honored; forced establishment remained in Massachusetts until 1733


A Publication of Separation of Church and State Law Ministry.



Jerald Finney
Copyright © February 25, 2018


The atmosphere in Massachusetts, amidst the persecutions and debate of the issues, began to shift toward toleration and even freedom of conscience. Even Governor John Winthrop, who had been a leader of the Puritans from the beginning of the colony, refused on his death bed in 1649 to sign a warrant to banish a Welsh minister, “saying, ‘I have had my hand too much in such things already.’”[1] “The second Massachusetts charter, which was dated October 7, 1691, allowed equal liberty of conscience to all Christians, except Papists.”[2]

Many of the establishment resisted the allowance of liberty of conscience contained in the 1691 charter. The ministers of the established churches construed the liberty of conscience provided for in the 1691 charter to mean “that the General Court might, by laws, encourage and protect that religion which is the general profession of the inhabitants.”[3] “For thirty-six years after … Massachusetts received [the 1691 charter], they exerted all their power, both in their legislative and executive courts, with every art that ministers could help them to, in attempts to compel every town to receive and support such ministers as they called orthodox.” Thus, despite the new charter, on October 12, 1692, in 1695, 1715, and 1723, the Assembly in Massachusetts enacted new laws requiring that every town provide a minister to be chosen and supported by all the inhabitants of the town, gave the Assembly and General Court power to determine, upon recommendation of three approved ministers, the pastor of a church, and a law requiring the towns of Dartmouth and Tiverton to tax to support ministers.  In 1693, the 1692 law was changed to allow each church to choose its own minister and exempted Boston from the requirement that all citizens be taxed to support that pastor.[4]

Thus, equal religious liberty was enjoyed in Boston, but was denied in the country. Many, including Baptists and Quakers, were taxed to support paedobaptist ministers. Those who did not pay the tax were imprisoned for failing to pay the tax, and some officials were taxed for failing to assess the tax. The cattle, horses, sheep, corn, and household goods of Quakers were from time to time taken from them by violence to support the approved ministers. In 1723, Richard Partridge presented a memorial to King George requesting that inasmuch as the Massachusetts charter allowed equal liberty of conscience to all Christians except Papists, the laws contravening the charter be declared null and void, and the prisoners who refused to pay the tax be released. In 1724, the King ordered that the prisoners be released and the taxes remitted. The Massachusetts assembly passed an act in November 1724 requiring the release of the prisoners held for failing to assess the tax.[5]

In 1728, the Assembly passed a law exempting poll tax for ministerial support and forbidding imprisonment of those Baptists and Quakers, who gave their names and regularly attended their church meetings, for failure to pay ministerial taxes assessed on their “estates or faculty.” In November 1729, an act was added that exempted their estates and faculties also, under the same conditions.[6]

The law exempting Baptists was renewed when it expired and persecutions continued. The law exempting taxes to Baptists expired in 1747, but was renewed for ten years. Nonetheless, the establishment found ways to persecute members of Baptist churches in various towns in Massachusetts for not paying the tax—some imprisoned, and property such as cows, geese, swine, oxen, cooking utensils, implements of occupation such as carpenter’s tools and spinning wheel, etc. of some was confiscated.[7] The law expired in 1757, but a new one to continue in force thirteen years was made which exempted Baptists and Quakers if certain requirements were met. The law was renewed in 1771, even though Isaac Backus wrote Samuel Adams, never a supporter of separation of church and state, warning that the Baptists “might carry their complaints before those who would be glad to hear that the Legislature of Massachusetts deny to their fellow servants that liberty which they so earnestly insist upon for themselves.’”[8] Isaac Backus said of the oppressions under this law, “[N]o tongue nor pen can fully describe all the evils that were practiced under it.”[9] Baptists, including single mothers with children, were unjustly taxed in violation of the law, property was unjustly taken from Baptists to pay established ministers, lies were disseminated about Baptists and their beliefs, and courts of law conducted grossly unfair trials and rendered obviously unjust opinions against Baptists.[10]

In 1786 the legislature passed a law which allowed each town to tax for the support of ministry, schools, and the poor, and other necessary charges arising within the same town.  This tax resulted in collectors’ efforts to get their taxes, which caused much business in courts, and a great increase in lawyers. Some citizens arose in arms but were subdued by force of arms. Before fourteen men who were condemned for their rebellion could be hanged, the Governor and over half the legislature were voted out and the men were all pardoned. [11]

On February 6, 1788, delegates from Massachusetts who were meeting in Boston voted to adopt the newly drafted and proposed constitution for the states. One of the greatest objections against it had been that no religious test for any government officer was required. During debate, prior to adoption, a Congregational minister, Reverend Philips Payson, of Chelsea, arose and said, “… I infer that God alone is the God of the conscience, and consequently, attempts to erect human tribunals for the consciences of men, are impious encroachments upon the prerogatives of God”.[12] Isaac Backus arose also and said:

“Nothing is more evident, both in reason, and in the Holy Scriptures, than that religion is ever a matter between God and individuals; and therefore no man or men can impose any religious test, without invading the essential prerogatives of our Lord Jesus Christ. Ministers first assumed this power under the Christian name; and then Constantine approved of the practice, when he adopted the profession of Christianity as an engine of State policy. And let the history of all nations be searched, from that day to this, and it will appear that the imposing of religious tests hath been the greatest engine of tyranny in the world…. The covenant of circumcision gave the seed of Abraham a right to destroy the inhabitants of Canaan, and to take their houses, vineyards, and all their estates as their own; and also to buy and hold others as servants.  And as Christian privileges are much greater than those of the Hebrews were, many have imagined that they had a right to seize upon the lands of the heathen, and to destroy or enslave them as far as they could extend their power.  And from thence the mystery of iniquity carried many into the practice of making merchandise of slaves and souls of men.”[13]

By 1794, very few if any were collecting taxes to pay ministers,[14] but forced establishment remained in Massachusetts until 1833.

The First Amendment to the United States Constitution did not prevent establishment on the state level. Opponents of establishment in Massachusetts never gained a majority. Rather, law, under the contract clause of Article I, Section 10 of the Constitution of the United States of America proved to be the tool used by the legal system to bring about disestablishment in that state. Massachusetts held a constitutional convention in 1820, but declined to eliminate a religious test for officeholders, control of Harvard, and public support for religion. However,

“[i]n 1821, the Massachusetts Supreme Court, in [Baker v. Fales, 16 Mass. 487 (1821) (known as the Dedham case),] a holding consistent with the Supreme Court of the United States in Trustees of Dartmouth College v. Woodward, 17 U.S. (3 Wheat) 1 (1819), ruled that only corporations could hold property, not amorphous societies of believers. Only in response to these court decisions did the citizens support disestablishment, putting all the churches on equal footing in 1833. Contract law succeeded where politics would not, in overcoming support of religion.”[15]

With non-forced establishment, a church is free to incorporate or assume legal entity status in some other manner (become an established church) or remain free from the legal system. A church may possess property (as a meetinghouse) without owning it. This ministry shows churches how to do this. Future lessons will deal with that issue. See [16] for links to materials which get into that.


Endnotes

[1] Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 1 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), p. 436.

[2] Ibid., p. 445.

[3] Ibid., APPENDIX B, p. 532.

[4] Ibid., pp. 446-448, 499-505.

[5] Ibid., pp. 501-505, n. 1 pp. 501-503.

[6] Ibid., pp. 517-519 and appendix B, pp. 534-535.

[7] Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 1 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), pp. 94-98 and fn. 1, p. 97.

[8] William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), p. 128.

[9] Backus, Volume 2, p. 141

[10] Ibid., pp. 141-166.

[11] Ibid., pp. 330-331.

[12] Ibid., p. 336.

[13] Ibid.

[14] Ibid., p. 379.

[15] Mark Douglas McGarvie, One Nation Under Law: America’s Early National Struggles to Separate Church and State (DeKalb, Illinois: Northern Illinois University Press, 2005), pp. 17-18. Establishment continued, but not forced establishment. A church could now, with legal protection, either to become established or to remain outside of the legal system entirely.

[16] Spurious rationale for church incorporation: to hold property; Trust Explained; The Bible Trust Relationship: Links to Essays and Other Resources, Law on Church Organization (Trusts, Property Tax, Etc.).

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