Church and State in Early Maine

Barnes v. Inhabitants of First Par. in Falmouth (1810)

Until 1820, Maine was part of Massachusetts. Even once it broke away from the Puritan bastion, Maine exhibited a discernable “cultural Protestantism,” as Marc Arkin calls it. The 1821 legislature made sure to enact Sabbatarian type laws, punishments for blasphemy, and the like based on inherited Massachusetts statutes.

But it is prior to Maine’s secession that I want to look. A decade earlier, a Universalist minister, Thomas Barnes, sued to recover religious taxes paid by some of his congregants to support the state established Congregational church of the first parish in Falmouth (Portland now), Maine. Massachusetts law dictated that only public Protestant teachers who had been duly elected by an incorporated parish could receive these funds. Barnes did not qualify. So he brought what was basically a religious liberty claim against the whole system.

It is Chief Justice Theophilus Parsons’ (1750-1813) opinion, ruling against Barnes, that I want to quote at some length below. Parsons (who also named his son Theophilus who published his father’s memoir, which, I am sure, no one has read) was of the Massachusetts establishment (as were prominent men like William Cushing (1732-1810), who hailed from Parsons’ same court and was one of the first five justices on the U.S. Supreme Court), a descendant of Puritans, a graduate of Harvard, and a loyal Federalist, a proponent of the so-called Standing Order.

His opinion (I think I caught all the Westlaw page numbers embedded therein) is interesting for how much of the older way of thinking about these things (church, state, and conscience) endured into the new republic. Notice especially Parsons’ insistence that a well-ordered republic requires assistance from a “superior power.” The point in providing his extensive quotation is to highlight a cultural artifact attesting to the endurance of the Puritan ethos in America (i.e., Tocqueville was right).

Barnes v. Inhabitants of First Par. in Falmouth, 6 Mass. 401 (1810):

The object of a free civil government is the promotion and security of the happiness of the citizens. These effects cannot be produced, but by the knowledge and practice of our moral duties, which comprehend all the social and civil obligations of man to man, and of the citizen to the state. If the civil magistrate in any state could procure by his regulations a uniform practice of these duties, the government of that state would be perfect.

[…]

To obtain that perfection, it is not enough for the magistrate to define the rights of the several citizens, as they are related to life, liberty, property, and reputation, and to punish those by whom they may be invaded. Wise laws, made to this end, and faithfully executed, may leave the people strangers to many of the enjoyments of civil and social life, without which their happiness will be extremely imperfect. Human laws cannot oblige to the performance of the duties of imperfect obligation; as the duties of charity and hospitality, benevolence and good neighborhood; as the duties resulting from the relation of husband and wife, parent and child; of man to man, as children of a common parent; and of real patriotism, by influencing every citizen to love his country, and to obey all its laws. These are moral duties, flowing from the disposition of the heart, and not subject to the control of human legislation.

[…]

Civil government, therefore, availing itself only of its own powers, is extremely defective; and unless it could derive assistance from some superior power, whose laws extend to the temper and disposition of the human heart, and before whom no offence is secret, wretched indeed would be the state of man under a civil constitution of any form.

[…]

On these principles, tested by the experience of mankind, and by the reflections of reason, the people of Massachusetts, in the frame of their government, adopted and patronized a religion, which, by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of the citizens, so far as might be consistent with the imperfections of man.

[…]

In selecting a religion, the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted. This religion was found to rest on the basis of immortal truth; to contain a system of morals adapted to man, in all possible ranks and conditions, situations and circumstances, by conforming to which he would be meliorated and improved in all the relations of human life; and to furnish the most efficacious sanctions, by bringing to light a future state of retribution. And this religion, as understood by Protestants, tending, by its effects, to make every man submitting to its influence, a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.

[…]

Having secured liberty of conscience, on the subject of religious opinion and worship, for every man, whether Protestant or Catholic, Jew, Mahometan, or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion, of Protestant Christians to all the people. And for this purpose it is made the right and the duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality; and the election and support of the teacher depend exclusively on the will of a majority of each society incorporated for those purposes.

[…]

In the election and support of a teacher, every member of the corporation is bound by the will of the majority; but as the great object of this provision was to secure the election and support of public Protestant teachers by corporate societies, and as some members of any corporation might be of a sect or denomination of Protestant Christians different from the majority of the members, and might choose to unite with other Protestant Christians of their own sect or denomination, in maintaining a public teacher, who by law was entitled to support, and on whose instructions they usually attended, indulgence was granted, that persons thus situated might have the money they contributed to the support of public worship, and of the public teachers aforesaid, appropriated to the support of the teacher on whose instructions they should attend.

[…]

But as every citizen derives the security of his property, and the fruits of his industry, from the power of the state, so, as the price of this protection, he is bound to contribute, in common with his fellow-citizens, for the public use, so much of his property, and for such public uses, as the state shall direct. And if any individual can lawfully withhold his contribution, because he dislikes the appropriation, the authority of the state to levy taxes would be annihilated; and without money it would soon cease to have any authority. But all moneys raised and appropriated for public uses, by any corporation, pursuant to powers derived from the state, are raised and appropriated substantially by the authority of the state. And the people, in their constitution, instead of devolving the support of public teachers on the corporations, by whom they should be elected, might have directed their support to be defrayed out of the public treasury, to be reimbursed by the levying and collection of state taxes. And against this mode of support, the objection of an individual, disapproving of the object of the public taxes, would have the same weight it can have against the mode of public support through the medium of corporate taxation. In either case, it can have no weight to maintain a charge of persecution for conscience' sake. The great error lies in not distinguishing between liberty of conscience in religious opinions and worship, and the right of appropriating money by the state. The former is an unalienable right; the latter is surrendered to the state, as the price of protection.

[…]

The last objection is founded upon the supposed antichristian conduct of the state, in availing itself of the precepts and maxims of Christianity, for the purposes of a more excellent civil government. It is admitted that the Founder of this religion did not intend to erect a temporal dominion, agreeably to the prejudices of his countrymen; but to reign in the hearts of men, by subduing their irregular appetites and propensities, and by moulding their passions to the noblest purposes. And it is one great excellence of his religion, that, not pretending to worldly pomp and power, it is calculated and accommodated to meliorate the conduct and condition of man, under any form of civil government.

[…]

The objection goes further, and complains that Christianity is not left, for its promulgation and support, to the means designed by its Author, who requires not the assistance of man to effect his purposes and intentions. Our constitution certainly provides for the punishment of many breaches of the laws of Christianity, not for the purpose of propping up the Christian religion, but because those breaches are offences against the laws of the state; and it is a civil, as well as a religious duty of the magistrate, not to bear the sword in vain.

[…]

. And from the genius and temper of this religion, and from the benevolent character of its Author, we must conclude that it is his intention that man should be benefited by it in his civil and political reiations, as well as in his individual capacity. And it remains for the objector to prove, that the patronage of Christianity by the civil magistrate, induced by the tendency of its precepts to form good citizens, is not one of the means by which the knowledge of its doctrines was intended to be disseminated and preserved among the human race.

[…]

As Christianity has the promise not only of this, but of a future life, it cannot be denied that public instruction in piety, religion, and morality, by Protestant teachers, may have a beneficial effect beyond the present state of existence. And the people are to be applauded, as well for their benevolence as for their wisdom, that, in selecting a religion whose precepts and sanctions might supply the defects in civil government, necessarily limited in its power, and supported only by temporal penalties, they adopted a religion founded in truth; which in its tendency will protect our property here, and may secure to us an inheritance in another and a better country.

[Fin.]