Tag Archives: Elijah Balkcom

IX. The Baptists Fight in the Courts; Reject Backus’s Advice; Backus Changes His Focus to Baptist Doctrines; Connecticut Continues To Persecute Dissidents; Connecticut Rejects Forced Establishment in 1818


A Publication of Churches Under Christ Ministry



Jerald Finney
Copyright © February 28, 2018


The Baptists fought on. They took their case to the courts. Attleboro, Massachusetts assessed a religious tax on everyone. Some members of a Baptist church in Attleboro refused to file a certificate and refused to pay the tax. The property of some was sold to pay the tax. Elijah Balkcom, after being arrested, paid the tax under protest, and then sued to test the constitutionality of Article Three. They won an initial victory in county court.

However, the case was overturned two years later on appeal of the favorable trial court decision in the case of Cutter v. Frost. Cutter also held that only incorporated religious societies were entitled to legal recognition. Since most, if not all, of the Baptist churches in Massachusetts were unincorporated, they were not qualified for exemption. [1] A lawyer advised Mr. Backus and the grievance committee to file the certificates, pay their taxes, and sue if the parish treasurer refused to turn the money over to their own pastor. The committee voted to follow this advice, Mr. Backus casting the lone negative vote. This was a reversal of the 1773 stand against giving of the certificates. “The spirit of the times did not call for martyrdom and fanaticism. The other members of the committee were more interested in improving the status and respectability of their denomination.”[2]

As a result, three cases were brought in three different courts and the Baptists prevailed at trial court and on appeal. In other cases over the years, much time and expense was expended to get tax money earmarked for Baptist ministers. One case required fourteen lawsuits before the town treasurer yielded the taxes. In some towns, when it was shown the Baptists would sue, the “Standing Order” ceased to argue the matter.[3]

Mr. Backus, being disappointed with his twelve-year battle against certificates, turned his zeal to other outlets—to fighting the threat to Baptist doctrines.

As new Baptist churches continued to be constituted, and the number of Baptists continued to increase, the persecution continued in Connecticut. In 1784, Connecticut made a new law continuing the support of established ministers by taxation. However, another act exempted all persons from that tax who filed a certificate to the effect that they regularly attended and supported worship services in any type of gospel ministry. Mr. Backus said of this act, “[I]s not this a mark of the beast? … Blood hath ever followed the support of worship by the sword of the magistrate…. And how can any man keep himself unspotted from the world, if he forces the world to support his worship?”[4]

Then, in May of 1791, Connecticut passed an addition to the ineffectual law of 1784 which held that “no certificate could be legal, until it was approbated by two justices of the peace, or only by one, if there was no more in the town where the dissenter lived,” and that such certificate was ineffective as to taxes granted before the certificate was lodged.[5] However, after a remonstrance and petition were presented, the law was repealed in October 1791 and another law made to allow every man to give in his own certificate, if he dissented from the ruling sect.

The quest for religious freedom in Connecticut continued until 1818 when state support was withdrawn from the Congregationalist Church.[6]


Endnotes

[1] William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), p p. 160-161; see Backus’ reaction to the decision in the Balkcom case in McLoughlin, William G., Editor. Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968, “A Door Opened for Christian Liberty,” pp. 428-438.

[2] Ibid., pp. 163-164.

[3] Ibid., pp. 164-165.

[4] Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), pp. 320-321.

[5] Ibid., p. 345.

[6] William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), p. 114.

The Separates and the Baptists in New England


Jerald Finney
Copyright © December 31, 2012


Click here to go to the entire history of religious liberty in America.


Note. This is a modified version of Section IV, Chapter 7 of God Betrayed: Separation of Church and State/The Biblical Principles and the American Application. Audio Teachings on the History of the First Amendment has links to the audio teaching of Jerald Finney on the history of the First Amendment.


The Separates and the Baptists in New England

Contents:

I. George Whitfield and the Great Awakening in New England
II.
The Separate movement, the New Lights and the Old Lights, Isaac Backus separates, persecution brings more to the New Light position
III.
The Separate movement had enduring consequences; Baptist churches sprang from it in New England; Isaac Backus became a Baptist and a Baptist leader, stood for Baptist principles, and was vilified and persecuted for his stand
IV.
The Separates and Baptists divide in love
V.
The revival died out; Separate churches disappeared; the Baptist denomination experienced unprecedented growth; the Warren Association was formed to obtain religious liberty; Backus led the fight for religious liberty, and was opposed by John Adams; Backus sought the same end as George Mason, Thomas Jefferson and James Madison as to a Bill of Rights, but from a pietistic as opposed to a humanistic point of view
VI.
The Baptists fought on, the certificates, the Baptists went to the courts, the Cutter case and other cases, persecution of Baptists continued but the Baptists continued to grow in numbers, in 1818 state support for the Congregationalist church was withdrawn in Connecticut


I. George Whitfield and the Great Awakening in New England

“Congregationalism claimed a large class of inferior church members by 1720, baptized into the churches without conversion” (William L. Lumpkin, Baptist Foundations in the South (Eugene, Oregon: Wipf & Stock Publishers, 2006), p. 2).  Generally speaking, by 1740, religious decay had spread throughout New England. However, “the relentless preaching of Jonathan Edwards of complete surrender to the will of God introduced the novel phenomenon of revival in Massachusetts” (Ibid.). The revival spread down the Connecticut Valley into Connecticut (Louis Franklin Asher, John Clarke (1609-1676): Pioneer in American Medicine, Democratic Ideals, and Champion of Religious Liberty (Paris, Arkansas: The Baptist Standard Bearer, Inc.), p. 21). Between 1635 and 1640 Congregationalism had been planted in the Connecticut colony: “As the country was more fully discovered, the lands on Connecticut river grew so famous for their fruitfulness, and convenience to keep cattle, that great numbers from New-Town, Dorchester, &c., removed there, under the conduct of Mr. Hains, Mr. Hopkins, Mr. Ludlow, and Mr. Hooker, &c., and through inexpressible hardships, through famine, and weariness, and perils of the enemy, they at length settled at Hartford, 1635 and 1636, which was the beginning of the Connecticut colony; and, in 1637, New-Haven colony was begun by a people directly from England” ((John Callender, The Civil and Religious Affairs of the Colony of Rhode-Island (Providence: Knowles, Vose & Company, 1838), pp. 67-68). The initial revival was of short duration … and did not touch the people of New England generally (Lumpkin, p. 2). Then, George Whitefield, the world-famous English evangelist arrived at Newport. Great crowds greeted Whitefield wherever he went to preach. In Connecticut, he was greeted with great enthusiasm. All Connecticut was at his feet.

As a result of that great revival, many were converted and churches experienced unprecedented growth. The Great Awakening emphasized individual conversion and the new birth (Ibid., pp. 3-5). “[T]he new converts were dubbed ‘New Lights’ by their critics because the awakened people emphasized the immediacy of the Holy Spirit’s illumination and leadership in their personal lives” (Ibid., p. 7).  The members of the old churches were called “Old Lights.” “The former favored Whitefield’s type of evangelism and the idea of the regenerate church; the latter opposed revivalism and defended the state church order” (Ibid.).

Many itinerant preachers arose as a result of this revival. Consequently, the General Court of Connecticut “forbade all itinerant preaching under penalty of loss of the right to collect one’s legal salary and imprisonment. Itinerant lay preachers or strange ministers were to be silenced or expelled from the colony” (Ibid., p. 8; see also, for the actual wording of the act against itinerant and other preachers, Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), pp. 44-46). “In Connecticut, legal action was taken against the revivalists, their churches were deprived of legal status, and some of the preachers were thrown into jail” (William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), p. 87).

The Great Awakening brought as many as 50,000 new converts, and brought into being, between 1740 and 1760, one hundred and fifty new Congregationalist churches and added to the number of Separatist and Baptist churches. “It brought the personal and pietistic religious tradition into a section previously dominated without challenge by Calvinistic rationalization…. As always and everywhere, the New England situation shows that such separation and disestablishment arose out of religion and not its opposite” (Ibid.).


II. The Separate movement, the New Lights and the Old Lights, Isaac Backus separates, persecution brings more to the New Light position

A number of New Lights who initially tried to influence the church to return to the concept of the pure church were forced out of the established churches. The term “Separates” referred to those who believed that the church should only include regenerate members and those who separated from the state-churches on this conviction. The Separate movement started in Connecticut and moved to Massachusetts. Separate churches began to appear at various towns.

There was great prejudice against Baptists. England forced New England to exempt Baptists from taxation in 1728, but the establishment found ways to circumvent this exemption. Operating clandestinely because of opposition by the authorities, Baptist preachers had come into Connecticut from Rhode Island, as they had done in Massachusetts, starting in 1674. They made some converts and even started some churches in Connecticut in 1704, 1710, 1735, and 1740. All dissenters were taxed to support the established church unless certified to pay the tax to their own churches. To be exempted they had to attend regularly their own church and live within five miles of their meeting place. Those who belonged to no church were also assessed the tax (Lumpkin, pp. 11-13). However, Separates were not given the privileges accorded Baptists, Quakers, and Anglicans.

One of the most prominent of the Separates was Isaac Backus. Although he spent much of his ministry in Massachusetts, he was a native of Norwich, Connecticut. In the new movement, he became the leading figure; and his shift from the Separate to the Baptist camp is central to the religious history of New England (William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967); Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1968), pp. 60-61).

Mr. Backus was saved in 1741. On August 24, 1741, Mr. Backus, in his own words, speaking of himself, realized:

“that he had done his utmost to make himself better, without obtaining any such thing; but that he was a guilty sinner in the hands of a holy God, who had a right to do with him as seemed good in God’s sight; which he then yielded to and all his objections against it were silenced.  And soon upon this a way of relief was opened to his soul, which he never had any true idea of before, wherein truth and justice shine with luster, in the bestowment of free mercy and salvation upon objects who have nothing in themselves but badness. And while this divine glory engaged all his attention, his burthen of guilt and evil dispositions was gone, and such ideas and inclinations were implanted in his heart  as were never there before, but which have never been rooted out since, though often overclouded” (Backus, A History of New England…, Volume 2, p. 107).

Two years later, he, his mother, and some of his other relatives walked out of the established Norwich Church they belonged to and started holding meetings of their own. They left the church because the church voted to admit new members by a majority vote without evidence of conversion, the minister appeared to think that the Lord’s Supper was a converting ordinance, and the church exhibited a “strong affection for the Saybrook scheme.”

A revolution had begun.

“The essence of the religious revolution which the Separate movement began (and the Baptists finished) lay in church government and not in theology—though it became necessary eventually to modify Calvinism in order that it might conform more nearly to the unforeseen ramifications of the new practices in church discipline and polity. The major issues involved in church government were the autonomy and purity of the church, the nature of the ministry, and the relationship between Church and State” (McLoughlin, The American Pietistic Tradition, pp. 23-24).

The church and state were interwoven in New England. Into the eighteenth century the Puritan tradition continued in greater strength in Connecticut than elsewhere. All citizens were taxed for the support of religion. The Saybrook Platform was ordained by the Connecticut legislature in 1708. Under it, county associations of ministers met frequently to deal with matters of common interest, regional bodies called consociations were to handle all kinds of ecclesiastical difficulties, and a general state association exercised a general superintendency over churches and ministers. Under the Saybrook Platform, the county associations approved, licensed, and ordained the ministers of the parishes (Lumpkin, p. 11; Backus, A History of New England…, Volume 1, pp. 472-474; Backus, A History of New England…, Volume 2, p. 319). The state supported the actions of the county associations, and could deny the right of a minister to preach and collect his salary (McLoughlin, The American Pietistic Tradition, p. 24).

Various struggles arose. In 1742 and 1743 laws were passed forbidding itinerant preachers from preaching without permission of the parish minister with penalty of imprisonment, excluding settled ministers who preached in any other parish without consent of the parish minister from any benefit of the laws for their support, removing from Connecticut any minister from any other colony who preached in Connecticut, and giving the legislature authority to license dissenting churches which complied with the British Toleration Act of 1689 (Backus, A History of New England…, Volume 2, pp. 319-320). The Legislature disciplined members of the Council and General Assembly known to sympathize with the New Lights. “Unauthorized schools and colleges were forbidden and only university graduates were eligible for ministerial standing before the law” (Lumpkin, p. 15; see also, Backus, A History of New England…, Volume 2, p. 57, fn. 3). The county associations began to act. The New Haven Consociation in 1742 expelled pastors of established churches for preaching to a group of Separates and Baptists against the wishes of the established minister. In Canterbury, Windham County the majority of the church, New Lights, voted for a certain man to be pastor, but the Old Lights who were the majority in the parish voted for another. By law, both the church and parish had to concur, but the Windham Consociation declared that the minority of Old Lights in the church were the true church and ordained their choice (Backus, A History of New England…, Volume 2, pp. 68-74; McLoughlin, p. 26). In Plainfield, the Windham Consociation “reversed the position it had taken in Canterbury and sided with a minority of Old Lights in the church to choose an Old Light minister over the objection of the majority of New Lights in the parish” (McLoughlin, The American Pietistic Tradition, pp. 26-27).

The inequities and the persecutions by the established church and civil government resulted in more and more defections to the New Light position. The civil government used repressive measures to compel the Separates to return to the fold. “Revivalistic ministers were shut out of meeting houses; members were moved from civic office and, when they refused to pay taxes for support of the regular ministry, imprisoned” (Lumpkin, p. 14, citing Backus, A History of New England…, Volume 2, p. 176).  At first most Separates that left the state-churches seemed destined to become Baptists. However, great disagreement arose between those who still adhered to infant baptism and those who insisted upon believer’s baptism—baptism after a confession of faith only. As a result of this disagreement, the Baptist members left the Separate churches and formed their own churches.


III. The Separate movement had enduring consequences; Baptist churches sprang from it in New England; Isaac Backus became a Baptist and a Baptist leader, stood for Baptist principles, and was vilified and persecuted for his stand

This Separate movement had enduring consequences. One writer appropriately noted:

“[T]he Separatist movement is not appreciated as it deserves. We have too nearly forgotten our obligations to those men who dared to break away from the corrupt and worldly churches of the Standing Order, though they were armed with all the power of the State, of which they were a part, and to establish other churches in which vital godliness was the condition of membership. It was a transition movement, it is true, and of necessity only temporary, but its results were enduring. Many of the Baptist churches in New England spring from it directly, and through them, indirectly, almost all the rest; and other evangelical churches are largely indebted to it for their vitality and efficiency.—ED” (Backus, A History of New England…, Volume 2, fn. 1, p. 64).

From the point of his conversion, Mr. Backus gradually became a leader of the Baptist movement. He was asked to preach to a church at Titicut in 1748, a revival resulted, people were saved, and a Separate church was formed in February, 1748 in defiance of the authorities. Mr. Backus and sixteen men signed the church covenant which provided for election and dismissal of the ministers, deacons, and elders by a majority vote, repudiated the claim that the minister was superior in authority to the brethren, stated that the minister was to be supported by free contribution of the members, and asserted the priesthood of all believers and the right and duty of all members to exercise any ability they had to preach or pray in public (McLoughlin, The American Pietistic Tradition, pp. 42-43).

Mr. Backus was opposed by scurrilous opposition. As he said, “I had many things thrown upon me to represent my Carecter odious and hinder me in this glorious Work.” Lies were told about him, such as that he had a wife and children in the country, that he had “bastards in this place or that, that there was a girl or two with his child (Ibid., p. 46).

The members of the church were taxed to support the established church. The church protested the tax, but parish committee refused to exempt Mr. Backus and his followers from religious taxes. Their rationale was basically that the golden rule required them to do so, and that the committee would want their neighbors to force them to pay such a tax if they were in error. “[N]either doth God himself countenance or give Liberty to any men to follow the ‘Dictates of a misguided Eronius Conscience’” (Ibid., p. 52). The reply gave an argument over the separation of church and state with which Backus had to wrestle the rest of his life.

“Oppression ‘can’t mean and intend that Tis unwarrantable or sinfull for men to urge and press others to a compliance with their Duty as it is pointed out by the Laws of God or the good and wholesome Laws of the Land and in case men through obstinacy and willfulness [refuse] and so will not make good either Lawfull Contracts [&] Covenants the original good and Design of their being incorporated into Distinct [religious] societies [or parishes] and so Tis no oppression….’ Under the Golden Rule the committee said it would want their neighbors to force them to do their duty if they were in error. ‘Liberty of Conscience according to the word of god is not for men to Live as they list or Do as they please while they maintain Erors in Judgment, Disown the truth of god, Exclaim against a faithful ministry, make Light of that good order and government which Jesus Christ has set up in his church; neither does God himself countenance or give Liberty to any men to follow the Dictates of a misguided Eronius Conscience….’ ‘Let it be observed that there is a great difference between persecution and prosecution’ (Ibid.).”

In February, 1749, Backus was arrested for not paying a ministerial tax, but someone paid it for him, and he was released. Other members of the church were imprisoned or had their property confiscated for failing to pay the tax.

“Three-quarters of a century were to pass and Backus was to be in his grave before the people of Massachusetts yielded to the radical New Light view that the state should indeed allow individuals to ‘act and Conduct as they pleas’ in matters of religion even if it meant imperiling their souls, the destruction of the parish system, the end of compulsory religious taxation, and the abandonment of the Puritan ideal of a corporate Christian commonwealth” (Ibid., pp. 52-53).

Backus struggled with the issue of baptism, studied Scripture, rejected infant baptism, and was baptized by dipping on August 22, 1751 (Backus, A History of New England…, Volume 2, pp. 108-111).  He set out to refute the anti-pedobaptist position by first turning to the Bible, and then to the claims of Baptist scholars in England that infant baptism was a corruption brought into the Christian church in the 2nd or 3rd century. What he found surprised him.

Next, Backus examined the Covenant Theology which lay at the heart of New England Puritanism. The relevance of this theology to Backus was mainly its effect on the church-state issue (McLoughlin, pp. 61-63):

First, “[T]he Jewish church was clearly a national church, a theocracy in which Moses and Aaron ruled together, and thus the Puritans were able to utilize the covenant theology to justify their ecclesiastical laws and their system of territorial parishes and religious taxes.  Second, the covenant theology provided the Puritans with justifications for the Halfway Covenant, thus polluting the purity of the mystical body of Christ. And in the third place the covenant theology, by emphasizing that grace ran ‘through the loins of godly parents,’ that the baptized children of visible saints were somehow more likely than others to obtain salvation, thereby established a kind of hereditary spiritual aristocracy; it also undermined the sovereignty of God by implying that God was bound by this covenant to save certain persons rather than others. [Etc.]” (Ibid., pp. 62-64).

The Puritans supported the unity of the Abrahamic Covenant in Romans 11.17:“Here, the apostle Paul spoke of the Christian covenant as being grafted on to the Jewish covenant as a branch is grafted on to an olive tree, from whence the Puritans ‘argued the right of professors now to baptize their children, because the Jews circumcised theirs.’ This Backus rejected as misinterpretation. ‘The Jews were broken off thro’ unbelief, and the Gentiles were grafted in, and stand only by faith.’ Faith was essential to baptism. What Puritans stressed as organic continuity, Backus and the Baptists stressed as a complete break” (Ibid., p. 76).

Backus concluded that the Separates must explicitly reject the Covenant Theology, the whole conception of the corporate Christian state which the Puritans had so painstakingly constructed in the wilderness of New England. Backus decided against infant baptism and was baptized. “[H]e rejected the Covenant Theology of the Puritans by arguing as the Baptists had long done that the Bible contained two covenants, the old Covenant of Works made with the Jews, and the Covenant of Grace made with those who believe in Christ….” “[T]he Puritans had confused the gospel of grace with the doctrine of works and transformed the gospel church of visible saints into a national church with a birthright membership” (Ibid., pp. 73-76). “Backus and the Baptists stressed the discontinuity, the antithetical nature of the two, the complete and distinct break between the past and the present dispensations. That Americans were ready to grasp this new outlook after 1740 and to pursue it to its logical conclusions marks the real break with the Old World, the medieval mind and the Puritan ethos…” (Ibid., p. 74).


IV. The Separates and Baptists divide in love

At first the Separatists and Baptists desired to meet together. This proved untenable.

“[They] were bound together by the closest ties. The [Baptists] left the [Separate Congregational churches] with no ill feeling but with heartiest love, and this love continued, on both sides, after their separation. Their members had been converted together in the Great Awakening; together they had come out from the Standing Order; together they had suffered and were still suffering for the truth; they had the same enemies and oppressors; they felt the force of the same unjust and cruel laws; their plundered goods were sold at the same auctions, and their bodies confined in the same prisons; they had many kindred views and feelings, by which they sympathized most closely, and in which there were no others to sympathize with them. Moreover, they mutually desired inter-communion. Council after council and conference after conference recommended it, and there seemed to be no voice against it. And yet it failed. Practical difficulties arose…. The truth could not be escaped that Baptist churches, by renouncing infant baptism and sprinkling, and then practically recognizing them again as a proper declaration of discipleship and initiation to membership in the visible church, placed themselves in a position of direct inconsistency. One by one, reluctantly, but at last universally, they abandoned the untenable ground.—ED” (Backus, A History of New England…, Volume 2, fn. 1, p. 115; on pp. 116-119 Backus gives further arguments.).

By 1754, “the alliance between the two groups within Separatism was practically at an end, and the Baptist members left to form new churches or join existing ones” (Lumpkin, p. 18).

A Baptist church was instituted in Middleborough, Massachusetts by a number of brethren led by Mr. Backus from the Titicut Separatist church who were convinced communion should be limited to believers baptized upon a profession of their own faith. On July 23, 1756, Mr. Backus was installed as their pastor.

“He … published a discourse from Gal. iv. 31, to shew that Abraham’s first son that was circumcised was the son of the bond-woman, an emblem of the national church of the Jews; in distinction from regenerate souls, the spiritual seed of Abraham, of whom the Christian church was constituted; into which neither natural birth, nor the doings of others, can rightly bring any one soul, without its own consent. Upon these principles was the first Baptist church in Plymouth county then founded” (Backus, A History of New England…, Volume 2, pp. 117-118).


V. The revival died out; Separate churches disappeared; the Baptist denomination experienced unprecedented growth; the Warren Association was formed to obtain religious liberty; Backus led the fight for religious liberty, and was opposed by John Adams; Backus sought the same end as George Mason, Thomas Jefferson and James Madison as to a Bill of Rights, but from a pietistic as opposed to a humanistic point of view

The revival died out almost as fast as it had appeared. Conversions became rare. People turned their attention to politics and controversy. The Separate churches and groups either died, or found their way into the Baptist camp. The Baptists denomination experienced an unprecedented growth. In 1740 no more than six Calvinistic Baptist churches existed in New England; but by 1800 there were more than 325 Baptist churches, most of them Calvinistic (Lumpkin, p. 20).

The Warren Association, an association of Baptist churches, was formed in 1770. The main goal was to obtain religious liberty. This marked an important movement in the history of New England. An advertisement to all Baptists in New England was published requesting them to bring in exact accounts of their cases of persecution to the first annual meeting on September 11, 1770. The establishment feared the association and countered by dealing deceitfully with it and spreading lies about the association (Backus, A History of New England…, Volume 2, pp. 154-156; see also, pp. 408-409 concerning formation of the Warren Association).

Isaac Backus was the key member of the grievance committee of the Warren Association in September, 1771. “[He soon] became the principal spokesman for the Baptists in their efforts to disestablish the Puritan churches. As such he did more than any other man to formulate and publicize the evangelical position on Church and State which was ultimately to prevail throughout America” (McLoughlin, The American Pietistic Tradition, p. 109).

“An Appeal to the Public for Religious Liberty Against the Oppression of the Present Day” was the most important of the 37 tracts which Backus published during his lifetime and was central to the whole movement for separation of Church and State in America. “It remains the best exposition of the 18th century pietistic concept of separation” (Ibid., p. 123. The entire contents of the tract are in Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968), pp. 303-343.). In that tract, Backus argued, among other things:

“Basic to the Baptist position was the belief that all direct connections between the state and institutionalized religion must be broken in order that America might become a truly Christian country. Backus, like Jefferson and Madison, believed that ‘Truth is great and will prevail’—but by ‘Truth’ he meant the revealed doctrines of grace. His fundamental assumption was that ‘God has appointed two different kinds of government in the world which are different in their nature and ought never to be confounded together; one of which is called civil, the other ecclesiastical government.’ The two had been ‘confounded together’ by the Emperor Constantine and the Papacy and had ultimately been brought to New England by the Puritans ‘who had not taken up the cross so as to separate from the national church before they came away.’ A ‘Brief view of how civil and ecclesiastical affairs are blended together among us [in 1773] to the depriving of many of God’s people of that liberty of conscience which he [God] has given us’ utilized also the long–forgotten arguments of Roger Williams to defend the doctrines of separation” (McLoughlin, The American Pietistic Tradition, pp. 123-124).

Amidst persecutions of Baptists for failing to pay ministerial taxes, the association met on September 1773 and voted to refrain from giving any more certificates for tax exemption to pay the established minister. Backus listed the reasons why they would no longer obey “a law requiring annual certificates to the other denomination.” “Jefferson in his preamble to the Religious Liberty Act of Virginia and Madison in his famous Remonstrance of 1785 utilized essentially deistic arguments based upon reason and natural law. Backus’s arguments were pure pietism” (Ibid., p. 126):

1. [To get a certificate] “implies an acknowledgement that religious rulers had a right to set one sect over another, which they did not have.” 2. Civil rulers have no right to impose religious taxes. 3. Such practice emboldens the “actors to assume God’s prerogative.” 4. For the church, which is presented as a chaste virgin to Christ, to place her trust and love upon others for temporal support is playing the harlot. 5. “[B]y the law of Christ every man is not only allowed but also required to judge for himself concerning the circumstantials as well as the essentials of religion, and to act according to the full persuasion of his own mind.”The practice tends to envy, hypocrisy, and confusion, and the ruin of civil society (Backus, A History of New England…, Volume 2, p. 178, citing “An Appeal to the Public for Religious Liberty.”).

An Appeal to the Public was pietistic America’s declaration of spiritual independence. Like Jefferson’s Declaration three years later, it contained a legal brief against a long train of abuses, a theoretical defense of principle, and a moral argument for civil disobedience” (McLoughlin, The American Pietistic Tradition, p. 127). No answer was ever given to “An Appeal to the Public” which was published in Boston. The collection of taxes for support of the established religion continued with confiscation of property and imprisonments occurring (Backus, A History of New England…, Volume 2, pp. 178-182).

Attempts to gain religious freedom continued. The Warren Association sent Isaac Backus to the Continental Congress in 1774 where he met with an Association of other Baptist churches from several adjacent colonies which had elected a large committee to assist. They presented their appeal for religious liberty. John Adams and Samuel Adams, neither of whom was a friend to separation of church and state, falsely asserted that Massachusetts had only a “very slender” establishment, hardly to be called an establishment, that the General Court was clear of blame and always there to hear complaints and grant reasonable help (Ibid., pp. 200-202, and fn. 1, p. 201).  While Mr. Backus was gone, the lie was spread that he had gone to Philadelphia to break the union of the colonies.

All the time these happenings were going on, the issues were being debated in the newspapers. The Warren Association continued to publish to the public instances of persecution as well as to actively seek religious liberty from the government. The Warren Association presented a memorial on July 19, 1775 requesting religious liberty and pointing out the inconsistency of rebelling against England for taxing without representation while doing the same thing in the colonies. Ultimately, nothing came of this. In 1777, Mr. Backus prepared an address which was supported by a large number from various denominations urging religious liberty to the Assembly which had been empowered to frame a new Constitution which was accomplished in 1780. The Third Article of the new constitution “excluded all subordination of one religious sect to another,” but imprisonment, and confiscation of property from men who refused to acknowledge such subordination continued (Ibid., pp. 203-204, 219-220, 225-229, 228-229).

In 1778 Mr. Backus wrote “Government and Liberty Described and Ecclesiastical Tyranny Exposed.”He quoted Charles Chauncy:

“We are in principle against all civil establishments in religion. It does not appear to us that God has entrusted the State with a right to make religious establishments…. We claim no right to desire the interposition of the State to establish that mode of worship, [church] government, or discipline we apprehend is most agreeable to the mind of Christ. We desire no other liberty than to be left unrestrained in the exercise of our principles in so far as we are good members of society.” This, said Backus, was all that Baptists asked (McLoughlin, The American Pietistic Tradition, p. 140.  The entire tract is reproduced in Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1968) pp. 345-365).

“Perhaps as a result of this tract, the General Assembly tried to conciliate the Baptists by appointing a Baptist minister to deliver the election sermon in May, 1779. That minister, in his sermon, remained faithful to the principle of separation” (Ibid., 141).

Massachusetts began efforts to adopt a new constitution in 1777. The proposed constitution was defeated, but a new effort which began in 1779 proved successful. John Adams worked against the Baptist position at the convention. Mr. Backus, although not a delegate, went to Boston to stand for Baptist principles during the constitutional convention. He lobbied, wrote newspaper articles, published new tracts, and informed his brethren of what was going on (Ibid., p. 142).

Mr. Backus worked at the convention for a Bill of Rights. The first basic rights he listed were:

  • “All men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and persuing and obtaining happiness and safety.”
  • “As God is the only worthy object of all religious worship, and nothing can be true religion but a voluntary obedience unto his revealed will, of which each rational soul has an equal right to judge for itself; every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby. And civil rulers are so far from having any right to empower any person or persons to judge for others in such affairs, and to enforce their judgments with the sword, that their power ought to be exerted to protect all persons and societies, within their jurisdiction, from being injured or interrupted in the free enjoyment of his right, under any pretence whatsoever” (Ibid., pp. 142-144).

Backus’ position, although seeking the same end, was from a different point of view than that of George Mason, Thomas Jefferson and James Madison:

  • “Three years earlier George Mason, with Jefferson’s approval and Madison’s amendments, had written a statement on religious freedom into the Bill of Rights in the Virginia Constitution:
  • ‘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 practice Christian forbearance, love, and charity towards each other.’
  • “Backus’s tone was that of a New Light pietist; Mason’s that of an Enlightened latitudinarian. The Virginians spoke of the ‘Creator,’ Backus spoke of ‘God.’ Mason stressed reason and duty, Backus stressed ‘religious worship.’ Backus referred directly to God’s ‘revealed will’ and to the ‘soul.’ Mason omitted any reference to them.
  • “The difference was obvious and fundamental. The Virginia separationists were interested in leaving the mind free to follow its own rational direction. The Massachusetts pietists believed that separation was necessary in order to leave the ‘rational soul’ free to find ‘true religion’ as expressed in the Bible, ‘the revealed will’ of God. Implicit in both statements was a belief in God, in natural law, in man’s ability to find them. But the deistic separationists of Virginia trusted entirely to man’s reason and free will. The pietists insisted that only through the supernatural grace of God would men find the Truth that is in Jesus Christ. Though both views were individualistic, the deist was anthropocentric, the pietist theocentric” (Ibid., pp. 142-144).

The humanistic view of Mason, Jefferson, and Madison, that man, through his reason could successfully address all his problems, and the humanistic goal of the “happiness of man” were inherent in the Declaration of Independence and the Constitution, the two greatest governing documents of all time, although blended with biblical principles. The goal of “the glory of God” was not in the Declaration of Independence or the Constitution. Again, the Constitution is the greatest governing document ever conceived by a nation, but the biblical principle of “leaven”—bad doctrine always corrupts the good—has proven again, by the national experience, to be true. To understand and address a problem, one must be willing to face all the facts head on.

The Warren Association, on September 13, 1780, published a remonstrance, authored by Mr. Backus, against Article Three of that proposed constitution stating, among other things, that the provision therein requiring the majority of each parish “the exclusive right of covenanting for the rest with religious teachers,” thereby granting a power no man has a right to; and further stating that “the Legislature, by this Article, are empowered to compel both civil and religious societies to make what they shall judge to be suitable provision for religious teachers in all cases where such provision shall not be made voluntarily” (Backus, A History of New England…, Volume 2, fn. 2, pp. 229-230). But support for ministry could only be through voluntary support, not coercion which denied freedom of conscience. Backus and other Baptists “did not object to the view that Massachusetts should remain a Christian commonwealth; piety, religion, and morality could only be maintained with the institution of the public worship of God and of public instructions in piety, religion, and morality” were “generally diffused throughout the community” (McLoughlin, The American Pietistic Tradition, pp. 148-149).

“Jefferson, Mason, and Madison, designing the creation of a secular state, not only opposed all such practices but also objected to the use of chaplains in the Congress and armed forces, the authorization by the state of certain days of fasting, thanksgiving, and prayer; and the compulsory religious services in state universities. Jefferson explicitly stated that America was not and ought not to be a Christian country…. Backus never qualified his belief in a Christian commonwealth. He consistently argued for ‘a sweet harmony between’ Church and State. ‘It is readily granted,’ he wrote in 1784, ‘that piety, religion, and morality are essentially necessary for the good order of civil society’” (Ibid., pp. 149-150).


VI. The Baptists fought on, the certificates, the Baptists went to the courts, the Cutter case and other cases, persecution of Baptists continued but the Baptists continued to grow in numbers, in 1818 state support for the Congregationalist church was withdrawn in Connecticut

The Baptists fought on. They took their case to the courts. Attleboro, Massachusetts assessed a religious tax on everyone. Some members of a Baptist church in Attleboro refused to file a certificate and refused to pay the tax. The property of some was sold to pay the tax. Elijah Balkcom, after being arrested, paid the tax under protest, then sued to test the constitutionality of Article Three. They won an initial victory in county court.

However, the case was overturned two years later on appeal of the favorable trial court decision in the case of Cutter v. Frost. Cutter also held that only incorporated religious societies were entitled to legal recognition. Since most, if not all, of the Baptist churches in Massachusetts were unincorporated, they were not qualified for exemption (Ibid., pp. 160-161; see Backus’ reaction to the decision in the Balkcom case in McLoughlin, Isaac Backus on Church, State, and Calvinism, “A Door Opened for Christian Liberty,” pp. 428-438).  A lawyer advised Mr. Backus and the grievance committee to file the certificates, pay their taxes, and sue if the parish treasurer refused to turn the money over to their own pastor. The committee voted to follow this advice, Mr. Backus casting the lone negative vote. This was a reversal of the 1773 stand against giving of the certificates. “The spirit of the times did not call for martyrdom and fanaticism. The other members of the committee were more interested in improving the status and respectability of their denomination” (Ibid., pp. 163-164).

As a result, three cases were brought in three different courts and the Baptists prevailed at trial court and on appeal. In other cases over the years, much time and expense was expended to get tax money earmarked for Baptist ministers. One case required fourteen lawsuits before the town treasurer yielded the taxes. In some towns, when it was shown the Baptists would sue, the “Standing Order” ceased to argue the matter (Ibid., pp. 164-165).

Mr. Backus, being disappointed with his twelve-year battle against certificates, turned his zeal to other outlets—to fighting the threat to Baptist doctrines.

As new Baptist churches continued to be constituted, and the number of Baptists continued to increase, the persecution continued in Connecticut. In 1784 Connecticut made a new law continuing the support of established ministers by taxation. However, another act exempted all persons from that tax who filed a certificate to the effect that they regularly attended and supported worship services in any type of gospel ministry. Mr. Backus said of this act, “[I]s not this a mark of the beast? … Blood hath ever followed the support of worship by the sword of the magistrate…. And how can any man keep himself unspotted from the world, if he forces the world to support his worship” Backus, A History of New England…, Volume 2, pp. 320-321 ()?

Then, in May of 1791, Connecticut passed an addition to the ineffectual law of 1784 which held that “no certificate could be legal, until it was approbated by two justices of the peace, or only by one, if there was no more in the town where the dissenter lived,” and that such certificate was ineffective as to taxes granted before the certificate was lodged (Ibid., p. 345).  However, after a remonstrance and petition were presented, the law was repealed in October 1791 and another law made to allow every man to give in his own certificate, if he dissented from the ruling sect.

The quest for religious freedom in Connecticut continued until 1818 when state support was withdrawn from the Congregationalist Church (Marnell, p. 114).

Incorporation of churches in the colonies and the new nation


Jerald Finney
Copyright © December 10, 2012


Note. This is a modified version of Section VI, Chapter 3 of God Betrayed: Separation of Church and State/The Biblical Principles and the American Application.


   “The Constitution did not separate church and state [on the state level], but it did endorse a conception of society that made separation inevitable. The protection of private rights from public action required the delineation of private and public activities. Once law separated public and private realms, churches could not [according to the way the law developed] continue their historic roles of public service. [States that relied on the political process to effectuate separation of church and state, an essentially state matter, encountered tremendous difficulty in doing so.] Politics could not determine the form that educational and welfare institutions would take in the early republic because no political consensus existed. The law could—and when state and federal courts turned to consider this issue, their decisions were informed by the same legal doctrine. Ultimately the Supreme Court did impose a model of privatization on all of the states, but its effect was more to redirect political debate than to resolve political tension” (Mark Douglas McGarvie, One Nation Under Law: America’s Early National Struggles to Separate Church and State (DeKalb, Illinois: Northern Illinois University Press, 2005), p. 13).


Incorporation of churches became an issue for the Baptists in the colonies which carried over to the states in the new nation. In the 1700s, various denominations, including Baptists, in the colony of Rhode Island “took advantage of the absence of religious establishment by incorporating to address a wide range of church goals” (Ibid., p. 98).

“Pennsylvania’s laws on religious corporations demonstrate the changing attitudes toward churches and the transformation in the tenets underlying law from the colonial era to the early republic…. In the early republic, churches were redefined, under law, as private organizations serving private and not public goals” (Ibid., pp. 98-99)  In the colonial era Pennsylvania and New York had a longer history of incorporating churches than did the other colonies. The New York legislature passed a law allowing all Protestant sects to incorporate in the 1760s. The New York Constitution of 1777 provided for “free exercise and enjoyment of religious profession and worship, without discrimination or preference” (Ibid., pp. 89, 109-110).

“[T]he developing laws of private property, enforced through contracts, were given early expression to redefine the roles of churches in American society” in a 1784 New York case involving Trinity Church who had received land in a letter from Queen Anne in 1714. The case held that “contracts made with the Crown or its agent were valid, even when made during war when the king’s authority was denied by the colonists in the midst of revolution.” “After the judicial recognition of contract rights as superior to legislative enactment, the legislature had little choice but to limit its disestablishment initiatives to comply with the prevailing contract-law doctrine.” As a result, new law was passed allowing all sects to incorporate and hold property—“the law created a new system of general incorporation for all religious bodies to follow.” All churches in the state incorporated under the new law (Ibid., pp. 112-113).

At the same time that laws providing for incorporation of churches were being made, the churches were being redefined as private entities, and care of the poor and needy was passing from the church to the state. Prior to disestablishment, taxes collected by the state were transferred to churches for salaries of pastors, building, and charities. With disestablishment, charity went with the money, that is, with the state which could collect taxes, and not with the church. Rather than perceiving churches as helping society address its concerns, churches in the 1790s were recognized as impediments to social progress as public institutions might rationally conceive of it (See, e.g., Ibid., pp. 118-119).

In South Carolina, “[d]isestablishment once more followed and conformed to the legal separation of public and private spheres.” The 1790 constitution of South Carolina guaranteed religious liberty and transformed the church into a private institution “when its power as a public institution became too threatening” (Ibid., p. 132).  After 1790, poor relief, record keeping, and education to a lesser degree passed from church responsibility to government or private citizen responsibility (Ibid., p. 148).

In Massachusetts, Isaac Backus and others were against incorporation of churches, but many Baptist churches did not heed their counsel. The issue arose because of the adoption of Article Three to the constitution of Massachusetts in 1780. Isaac Backus and other Baptists vehemently opposed its adoption. Article Three required that compulsory religious taxes be laid in each parish, as they had always been for the “support the public worship of God,” and for the “support and maintenance of public Protestant teachers of piety, religion and morality.” However, new was the requirement that “these taxes were to be laid upon all sects or for all sects.” “Any Protestant minister, of whatever sect, was guaranteed compulsory tax support and the minister of any sect could, if he received the majority of votes of a parish, become legally established” (William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), p. 147).

After adoption of Article Three, certain Baptists refused to pay the religious tax. One, Elijah Balkcom, was jailed and paid the tax under duress. He then sued the accessors for taxing him illegally and contrary to his constitutional right to freedom of conscience. Although the Baptist position prevailed in that case, another case two years later, Cutter v. Frost, reversed the Balkcom decision. The Superior Court in the Cutter case reconstructed Article Three against the intent of the legislators and said that dissenters had to file a certificate in order to have their taxes paid to their own church and that “only religious societies incorporated by law were under any circumstances entitled to legal recognition.” “To be incorporated, each dissenting congregation would have to petition the legislature to obtain a charter.” Hence the Superior Court closed the door to the liberty which Backus had proclaimed could not be shut after the Balkcom case. The Cutter decision “denied any way for the Baptists to avoid supporting the parish churches except by petitioning the legislature for incorporation.” Petitioning the government for incorporation “was an even more flagrant infringement of conscience than giving in certificates; it acknowledged the power of the State over the Church—the power to incorporate some and not others according to its own standards” (Ibid., pp. 158-163).

Another alternative, which was opposed by Backus, was proposed and tried—a taxpayer could file a certificate, pay the tax and, should the parish treasurer fail to pay the taxes to his own pastor, sue to have his taxes returned on the basis that the tax denied his constitutional right to freedom of conscience. This method was costly and time consuming and had to be done case by case. However, it was used with some degree of success.

Because of Cutter,many Baptist churches chose to incorporate. Hezekiah Smith led the movement of Baptist churches to incorporate in spite of opposition of Isaac Backus and the Warren Association. Many Baptists supported incorporation to comply with the Cutter case so that the state would return taxes paid by Baptists to their parishes, and to make possible contracts between the members of a church and its pastor, which assured a decent salary. Of course, Backus took the biblical position, seeing the relationship between pastor and other church members as spiritual. He believed that incorporation “acknowledged the right of the state to decide which churches could and could not be chartered,” and “gave all persons in the congregation [whether saved or not, thereby ‘allowing the unconverted members to outvote the converted’] the right to vote on building or repairing a meetinghouse as well as paying the minister’s salary” thereby bringing the same conflicts encountered by Congregational parishes. Other reasons for arguing for incorporation was to allow churches to hold property or endowment funds in the name of the church. Backus “pointed out that the law gave the deacons, or any other suitably appointed persons, the power to ‘receive and hold estates or donations which are given for religious purposes, and to manage the same at the direction and for the good of the church or society.’” Some Baptists incorporated, against Backus’ advice, to avoid distraint or imprisonment. The Religious Liberty Act of 1811 reversed the Cutter Case and applied Article Three to all churches whether incorporated or not (Ibid., pp. 220-223).

After the ratification of the Constitution, the United States Supreme Court, headed by Chief Justice John Marshall, relied on the contract clause of Article I Section 10 to delineate public and private actions. “[Most c]hurches adapted to the new legal environment after 1790 by reforming themselves as private voluntary associations assuming a corporate form” (McGarvie, p. 115). The primary case in the Marshall Court decisions is the Dartmouth College case in which the Court used the contract clause to prevent New Hampshire’s legislature from breaking its contract of incorporation and restructuring the organization of a private Christian school (See Ibid., pp. 12, 152-189). Prior to Dartmouth College, “state legislatures consistently repudiated school and university charters in order to redesign educational institutions to serve political ends” (Ibid., p. 165).

Britain chartered the institution in Dartmouth College as The Trustees of Dartmouth College in 1769. Under the charter, the Trustees of Dartmouth College was an independent corporation, not requiring any further “grant, license, or conformation” (17 U.S. (4 Wheat) at 522). The college was supported by both private and state funds. The college fell under the control of orthodox conservatives who wished to emphasize the God in people’s lives and to modify the curricula appropriately. Restrictions on students were increased in 1809, and “students objecting to increased restrictions rioted, becoming drunk, burning outhouses, vandalizing more orthodox students’ rooms, firing guns into the night air, and spreading garbage over the campus environs of their suspected enemies” (McGarvie, p. 167). A public and political debate ensued pitting republican enlightenment ideals against conservative religious beliefs. The establishment of religion was at the time also being hotly debated. “Republican interests focused on the trustees of the college as dangerous ideologues inhibiting the state’s progress” (Ibid., p. 169). A republican governor and republican majority were elected in the 1816 New Hampshire election. One of the first acts of the new government was to restructure Dartmouth College. Two more followed quickly. The acts amended the charter to allow the state government to restructure the charter, rename the corporation to Trustees of Dartmouth University and the name of the school, and increased the number of trustees by nine, from twelve to twenty-one, and named the governor as the source of all new trustees and of future replacements. “Even more significant was that the act created a board of overseers, appointed by the governor to govern the university, to undertake most of the responsibilities formerly held by the trustees. The board was authorized to approve or negate any action of the trustees to appoint and remove the president and officers of the university, to set their salaries, to establish professorships, to create new buildings, and to approve all faculty appointments” (Ibid., p. 171 citing Dartmouth College, pp. 540-544).

The legislature also expanded religious freedom at Dartmouth.

The trustees fought the new laws. The president of Dartmouth, Reverend Francis Brown, outlined the philosophical divide confronting the Court, New Hampshire, and the country:

“That the labours of the philosopher were so impotent, and the preaching of the apostle attended with such energy is not strange. The mind of Plato, after all his attainments, was involved in spiritual darkness. Paul, on the other hand, was irradiated with a light from heaven, strong and clear; and the same divine spirit, who at first imparted it to his own mind, accompanied it as it was conveyed from him to his fellow man…. If instead of placing Paul in contrast with Plato alone, I had supposed all the philosophers of Greece and Rome arrayed on one side against this single apostle, the general result would have been the same” (Ibid., p. 172, citing Brown, “Sermon,” pp. 19-20).

The case went all the way to the Supreme Court which denied the state the right to unilaterally reconstruct the corporation. The main importance of the case is not in the protection of contract rights, or to decide whether a governmental creation was entitled to less protection from the government than other contracts. Those issues had been resolved in prior cases (Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); Terret v. Taylor, 13 U.S. 43 (1815)). The main importance of the case is in the reasoning of the Court which “expressed the Court’s perception of distinct realms of public and private action, and the role of the courts in the protection of private action from public action” (McGarvie, p. 175). According to Marshall, public institutions are not defined by their purposes, but as being part of the “civil government.” He reasoned that trustees and professors have no authority in or power over civil government, that they are not public officers and have no public duties (Dartmouth College, pp. 601-602, 635, 636). Thus, certain corporations are public and others private:

“The Dartmouth College case of 1819 was the crucial national pronouncement that repositioned the churches as private entities distinct from institutions of public governance. The decision expressed a new model of civic organization conceived with the Constitution. However, the legal model considered form rather than substance, imposing a private-public distinction and designating separate forums in which the two worldviews would hold sway. In this resolution, law perpetuated the contest between the two worldviews that form the intellectual basis of American culture” (McGarvie, p. 16).
“Arising out of the disestablishment controversy in New Hampshire, this decision sounded the death knell for New England establishment and confirmed the supremacy of liberal contract-law doctrine in all of the United States. Focusing on the contract clause of the Constitution, the Supreme Court recognized distinct private and public institutions and protected the former from interference by the latter. The old question of religious or church involvement in serving the public good, particularly in public education, was at the heart of the Dartmouth case” (Ibid., p. 152).

The case had other ramifications. Marshall wrote: “Charitable, or public spirited individuals, desirous of making permanent appropriations for charitable or other useful purposes, find it impossible to effect their design securely, and certainly, without an incorporation act” (Dartmouth College, p. 637). Thus, “unincorporated charitable institutions are too vague to receive bequests of decedents, as their intentions cannot be given definite assurance of fulfillment without a corporate charter and an organization that establishes parameters for the future use of funds” (McGarvie, p. 178). The same year, Marshall found that a court of equity could not establish “a vague legacy, the object of which is indefinite” even though the intentions of a testator to leave much of his estate to the Philadelphia Baptist Association were obvious, because “a court could not create a legal entity in order to enable it to receive a bequest consistent with a testator’s intent…. Without incorporation, under which the trustees were legally committed to serve the enunciated purposes, the funds left to an association had no assurance of being used for any specific end” (Ibid., p. 179 commenting upon Chief Justice John Marshall’s opinion in Trustees of the Philadelphia Baptist Association v. Hart’s Executors, 17 U.S. (3 Wheat) 1 (1819).).

  • Also, “After the Dartmouth College decision, government could not rely upon private philanthropic associations to address public perceptions of societal needs. The public-private distinction required states to define their priorities more carefully. No longer could states delegate to private concerns the responsibility for educating young people, caring for the poor, or creating roadways, because states could no longer exercise control over how these private concerns fulfilled their duties. To continue to rely on private concerns after 1819 risked creating educational, welfare, or infrastructure systems significantly at odds with legislative perceptions of the pubic interest.…
  • “In the process, civil society was redefined, separating governmental institutions from private charitable corporations. Religiously affiliated private associations pursuing their own goals remained viable on the institutional periphery of society. Marshall’s language in the Dartmouth College case expressed a major change in attitude from an earlier era: ‘These eleemosynary institutions do not fill the place which would otherwise be occupied by government, but that which would otherwise remain vacant’” (Ibid., p. 178).

Thus, the public and private spheres were divided with private spheres free to pursue their own visions for civil society, and the electorate would determine the public course of action. Protection was provided through the enforcement of contracts, an enlightenment device. The religion of secular humanism, the “religion of the republic,” “reduced Christian doctrine to its lowest common denominator, essentially a code of moral behavior expressed in the golden rule, and positioned God as a benevolent but uninvolved creator of natural laws” (Ibid., p. 188).

Since the Constitution did not recognize God in His exalted position of Supreme Sovereign of the nation and since it created a law modeled after biblical principles, including the biblical principle of separation of church and state, but leavened by some enlightenment principles, the direction of the nation in the long run could only be a much faster downward slide than if the founding documents had been formulated totally upon solid biblical principle under God.

Churches which incorporated under enlightenment principles were no longer truly free since the state created them, was their sovereign as to the earthly matters required by incorporation, and they were bound to comply with the terms of contracts which conflicted with biblical principles.