(State Constitution, Art. XI; Declaration of Rights, Secs. 3 and 4.)

76. The provision of the Constitution of the State of Texas upon the subject is substantially the same as that of the States of Kentucky and Arkansas, with the further provision that "it shall be the duty of the legislature to pass such laws as shall be necessary to protect every religious denomination in the peaceable enjoyment of their own mode of public worship." (State Constitution, Art. I, Secs. 3, 4 and 5.)

§ 77. It will be observed that there is a similarity of language and thought running through all the Constitutions of the States upon the subject of religious toleration, and yet the disparity of phraseology and sentiment is sufficient to make it impossible to give a correct idea of the matter without grouping together their various provisions. It is hoped that the subject will not be found without interest and profit, and that the advantage and satisfaction derived may compensate for the limited space occupied.

§ 78. Religious toleration in the United States may be regarded as an issue of Providence, rather than a settled conviction of right. The Colonists had witnessed, and many of them felt, the edge of persecution to its utmost keenness in the mother country, by reason of non-conformity to the national religion; yet, when fully established in the new world, each sect or denomination felt it of vital importance that they should be free, but that the miserable miscreants who differed from them might, with the strictest propriety, be deprived of the privileges of society. While the Colonies were independent of each other in respect to their domestic concerns, they had no difficulty in maintaining their distinctive idea, and substantially connecting the civil

power with religious opinions. But the moment they were threatened with dangers from abroad, and a union of the colonies for mutual defense was apparently their only salvation, they began to realize how difficult it would be for the Congregationalists or Independents of New England, and the Presbyterians of New Jersey, the Roman Catholics of Maryland and the Episcopalians of the South to unite upon any common platform of ecclesiastical view. So, in the actual situation of things, the Colonists were obliged to form a union, upon the basis of toleration in all matters of religion and worship; and thus, under the workings of Divine Providence, religious liberty is now universally enjoyed, and the settled theory of the government is, to avoid the slightest interference with the rights of conscience or the functions of religion.

CHAPTER VI.

RELIGIOUS TOLERATION BEFORE THE REVOLUTION- -THE COLONIAL CHARTERS AND LAWS.

§ 79. Though the free exercise and enjoyment of religious profession and worship is now regarded as one of the absolute rights of individuals in the United States, and is recognized as such in the Federal and State Constitutions, and secured to them by law; and, though the principle is generally asserted without qualification or limitation, excluding every species of religious test, the fact was far otherwise, as has been before intimated, prior to the American Revolution, and especially in colonial times. This right was greatly restricted by the charters and laws of many of the colonies.

§ 80. By an order of the General Court of Massachusetts in 1631, it was provided that no persons should be admitted to the freedom of the commonwealth, or should have the political rights of freemen, who were not members of some orthodox church in the State. So, also, in that part of Connecticut which, until 1665, constituted the separate New Haven Colony, the early settlers established and enforced by law a uniformity of religious doctrine and worship, and made it requisite that every person holding a civil office should be a church member. (1 Kent's Com., 7th ed., 645; 1 Trumbull's Hist. of Conn. 100; See also Beebe v. Fales, 16 Mass. R. 498.)

§ 81. By the declaratory act of East New Jersey, in 1698, religious liberty was confined to the Protestant professors of the Christian faith. And, in 1693, the legislature of West New Jersey prescribed a confession of faith as a condition of holding office, and that confession contained the declaration of a belief in the doctrine of the Trinity, according to the highest toleration act of 1689. So by the charter of liberties established by the General Assembly of the Province of New York, under the Duke of York, in 1683, complete enjoyment of religious doctrine and worship was granted only to persons who "professed faith in God by Jesus Christ." (1 Kent's Com. 647, and authorities cited in notes a and b.)

§ 82. In the code of laws or charter of privileges, prepared by William Penn, for Pennsylvania, in 1701, and adopted by the first Provincial Assembly, it was declared that no persons acknowledging a Deity, and living peaceably and quietly in society, should be molested or prejudiced for their religious persuasion or practice in faith and worship, or be compelled to frequent or maintain any religious ministry or worship. This liberal provision extended to all professing

Christians, both Catholic and Protestant, but it evidently excluded Atheists and Infidels. (16.)

§83. By the Constitution of 1776, of North Carolina, no person denying the divine authority of the Old and New Testaments, or the truth of the Protestant religion, could hold a civil office, and this restriction remained until the Constitution was amended in 1835, when the word Protestant was omitted and the word Christian substituted. The first excluded from office Catholics, as well as Atheists and Infidels. So, also, in Maryland, said to be the first of the American States in which toleration was established by law, it was declared by the Legislature, in 1649, that "no persons professing to believe in Jesus Christ should be molested in respect to their religion, or in the free exercise thereof, or be compelled to the belief of any other religion, against their consent," thereby limiting religious toleration to trinitarian Christians. (Ib., and Bacon's Laws of 1649, Ch. 1.)

§ 84. On the other hand, the charter of Rhode Island, of 1663, contained the extraordinary liberal declaration, for that early period, that "no persons within the Colony, at any time thereafter, should be in any wise molested, punished, disquieted or called in question for any differences in opinion in matters of religion, who do not actually disturb the civil peace of the Colony." Roger Williams, the founder of the State, in 1636, unquestionably prepared the way for this unexampled declaration of the rights and sanctity of conscience. (1 Kent's Com. 645.)

§ 85. The proprietaries of Carolina, for the better encouragement of settlers, declared, concurrently in point of time with the Rhode Island charter, that all persons settling therein should enjoy the most perfect freedom in religion; and the charter of Charles II, of June 30, 1667, to the pro

prietaries, authorized them to grant religious liberty of conscience and practice to non-conformists who did not thereby disturb the civil peace of the Province. So, also, Lord Burkeley and Sir George Calvert, the proprietaries of New Jersey, in their concessions to the settlers of 1664, of a charter of civil liberties, secured to them the full and perfect enjoyment of religious liberty, by adopting the same language as that used in the charter of Rhode Island; and the fundamental Constitutions of the twenty-four proprietaries, in 1683, reiterated the right to the same unqualified freedom of religious profession and worship. In the Jerseys and Carolinas, however, a more restricted policy was subsequently adopted. (Ib., 646.)

§ 86. It is quite obvious, therefore, that some of the colonial governments provided for the enjoyment of religious liberty in the largest sense, as allowing every man the free exercise and enjoyment of religious profession and worship, without discrimination or hindrance; and, from the illustrious examples referred to, it appears that "various portions of this country became, even in its infant state, distinguished asylums for the enjoyment of the principles of civil and religious freedom by the persecuted votaries of those principles from all parts of the Old World." (Ib., 647, and note c.)