Of Presidents and Walls.

There is a simple narrative which links the American revisions to the Westminster Confession of Faith’s chapters on the Liberty of Conscience, the Civil Magistrate, and Synods and Councils, and the First Amendment to the Constitution of the United States of America.  While they are most certainly linked, the nature of that link is not a straightforward joining of the dots.

The constitutions for the United States of America and for the Presbyterian Church in the USA were composed and ratified over the same period.  In the Church, the process began in 1786 with a motion proposing the formation of a General Assembly being passed and the erection of a committee to draft a suitable constitution for it.  The committee’s reported its plan to the 1787 Synod and the plan was sent down to Presbyteries under the Barrier Act for ratification.  The new constitution was adopted in May 1788 at what would be the last meeting of the Synod, and the first General Assembly met in May 1789.

In the new nation, the process also began in 1786 when a request was made to Congress to amend the Articles of Confederation.  Delegates met in May 1787; the new constitution was completed by the end of September that year; and the Constitution of the United States of America was ratified by a majority of the States and adopted by Congress on September 13, 1788.  However, it was not until September 1789 that the First Congress of the United States proposed 12 amendments to the Constitution.  Ten of them were ratified by the States by December 15, 1791, and became what is known as the Bill of Rights.

While the processes for constitutional change occurred over the same period and the meetings were often held in the same place, Philadelphia, the changes to the Westminster Confession of Faith predate the First Amendment.  Not only so, but they have a back story.

In 1729 the Presbyterian Synod in British North America adopted the Westminster Confession of Faith as the expression of its faith.  Its Adopting Act states that after proposing all the scruples that any of them had to make against any articles and expressions in the Confession of Faith and Larger and Shorter Catechisms of the Assembly of Divines at Westminster, those present (save one) having unanimously agreed in the solution of those scruples, and declared the said Confession and Catechisms to be the confession of their faith, “excepting only some clauses in the twentieth and twenty-third chapters, concerning which clauses the Synod do unanimously declare, that they do not receive those articles in any such sense as to suppose the civil magistrate hath a controlling power over Synods with respect to the exercise of their ministerial authority; or power to persecute any for their religion, or in any sense contrary to the Protestant succession to the throne of Great Britain”.

It is out of these exceptions that the revisions grow.

The First Exception.

The first exception concerns the spiritual independence of the church.  Chapter 31, Sections 1 and 2, in the original (1646) Confession read:

“(1) For the better government, and further edification of the Church, there ought to be such assemblies as are commonly called synods or councils.  (2) As magistrates may lawfully call a synod of ministers, and other fit persons, to consult and advise with, about matters of religion; so, if magistrates be open enemies to the Church, the ministers of Christ, of themselves, by virtue of their office, or they, with other fit persons upon delegation from their Churches, may meet together in such assemblies.”

Fearful that receiving this wording unchallenged might mean an acceptance of an Erastian control over the calling and meeting of ecclesiastical courts, the Church of Scotland, in 1647, declared in its approval of the Confession that it understood “some parts of the Second Article of the Thirty-One Chapter only of Kirks not settled or constituted in point of government; and that although in such kirks a synod of ministers and other fit persons may be called by the magistrate’s authority and nomination, without any other call, to consult and advise with about matters of religion; and although likewise the ministers of Christ, without delegation from their churches, may of themselves, and by virtue of their office, meet together synodically in such kirks not yet constituted, yet neither of these ought to be done in kirks constituted and settled; it being always free to the magistrate to advise with synods of ministers and ruling elders, meeting upon delegation from their churches, either ordinarily, or being indicted by his authority occasionally and pro re nata, it being also free to assemble together synodically, as well pro re nata as at the ordinary times, upon delegation from the churches, by the intrinsical power received from Christ, as often as it is necessary for the good of the Church so to assemble, in case the magistrate, to the detriment of the Church, withhold or deny his consent; the necessity of occasional Assemblies being first remonstrate unto him by humble supplication.”

The 1729 Adopting Act does not mention Chapter 31.  It draws attention to the 23rd chapter:

“(3) The civil magistrate may not assume to himself the administration of the Word and sacraments, or the power of the keys of the kingdom of heaven: yet he has authority, and it is his duty, to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administrated, and observed. For the better effecting whereof, he has power to call synods, to be present at them and to provide that whatsoever is transacted in them be according to the mind of God.”

And says that the Synod does not receive the section “in any such sense as to suppose the civil magistrate hath a controlling power over Synods with respect to the exercise of their ministerial authority”.

The 1789 version of the Confession joins Chapter 31, Sections 1 and 2, and rewrites them to read:

“(1) For the better government, and further edification of the church, there ought to be such assemblies as are commonly called synods or councils: and it belongeth to the overseers and other rulers of the particular churches, by virtue of their office, and the power which Christ hath given them for edification and not for destruction, to appoint such assemblies; and to convene together in them, as often as they shall judge it expedient for the good of the church.”

Although the wording is the same in both the 1646 and 1789 versions of the Confession, Chapter 31, section 5 (1646) or 4 (1789), it is relevant here.  It says:

“Synods and councils are to handle, or conclude nothing, but that which is ecclesiastical: and are not to intermeddle with civil affairs which concern the commonwealth, unless by way of humble petition in cases extraordinary; or, by way of advice, for satisfaction of conscience, if they be thereunto required by the civil magistrate.”

The Scottish General Assembly explains its understanding of this in terms of Chapter 31, with that interpretation colouring Chapter 23.  The Colonial Synod explains its understanding in terms of Chapter 23, with that interpretation colouring Chapter 31.  The American Synod removes any reference to the Civil Magistrate in this context except for in Section 4 of its version of Chapter 31.

All are agreed on the opening statement of Chapter 30 (“The Lord Jesus, as King and Head of His Church, hath therein appointed a government, in the hands of Church officers, distinct from the civil magistrate.”); and it is upon this thought that the declarations or exceptions are founded. The point being made is that not only are ecclesiastical government and civil government distinct, but also, in the ordinary course of events, they act independently of each other.  Yet, all are agreed that a two-way line of communication should exist so that in extraordinary circumstances the Church might petition the Civil Magistrate, or the Civil Magistrate might seek advice from the Church.

The Second Exception.

The second exception is that the Synod does not receive some clauses in the 20th and 23rd chapters of the 1646 Confession in any such sense as to give to the Civil Magistrate the “power to persecute any for their religion”.  The relevant sections containing the clauses are:

“(20:4) And because the powers which God has ordained, and the liberty which Christ has purchased are not intended by God to destroy, but mutually to uphold and preserve one another, they who, upon pretence of Christian liberty, shall oppose any lawful power, or the lawful exercise of it, whether it be civil or ecclesiastical, resist the ordinance of God. And, for their publishing of such opinions, or maintaining of such practices, as are contrary to the light of nature, or to the known principles of Christianity (whether concerning faith, worship, or conversation), or to the power of godliness; or, such erroneous opinions or practices, as either in their own nature, or in the manner of publishing or maintaining them, are destructive to the external peace and order which Christ has established in the Church, they may lawfully be called to account, and proceeded against, by the censures of the Church, and by the power of the civil magistrate.”

And:

“(23:3) The civil magistrate may not assume to himself the administration of the Word and sacraments, or the power of the keys of the kingdom of heaven: yet he has authority, and it is his duty, to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administrated, and observed. For the better effecting whereof, he has power to call synods, to be present at them and to provide that whatsoever is transacted in them be according to the mind of God.”

Again, building on the distinction between the government of the church and civil government, these sections deny the magistrate any power in sacred things (in sacris), but give him a power about sacred things (circa sacra) for the church’s wellbeing.  The church which is in mind is an established national Church, reformed in doctrine, worship, and government.  The idea that there could be an acceptable religious body outside of that Church is not obvious in the wording of the Confession.  By 1729, the reality of the ecclesiastical scene in the United Kingdom and its Colonies had changed.  Toleration of denominations outside of the established Churches had been a practice, to varying degrees, for many years.  Yet, for early 18th century North American Presbyterians, there was a 17th century history of persecution and a current story of discrimination in some Colonies.  However, the story was not uniform across the nationalities represented.  For the Scots, the issue of the previous century had not been toleration, but the form of the established church.  When that form was settled as Presbyterian at the Glorious Revolution, there was no toleration of another denomination alongside it with a different form.  Whether the Colonies to which they came had established churches or not, the American situation was new to them.  The Irish Presbyterians had never been the established church in any part of the island.  However, they had at various times been given special toleration and even government funding because of their support to the Protestant cause, particularly in the First Jacobite Rebellion.  When they came to America, they were used to toleration with privileges but found only toleration.  The English and Welsh immigrants had endured a history of Tests and Oaths with periods of different degrees of toleration.  Coming to the Middle Colonies was a relief; New York and Virginia were just like home.  New England Presbyterians moved south out of the Congregationalist Establishment to find toleration.  What those from all backgrounds experienced was that the Toleration Act was not evenly applied in all colonies by all governors.  The remedy, equality under the law, could not be only for Presbyterians but must be for all Dissenters.

That said, there is nothing in these first two exceptions to the Westminster Confession of Faith which is clearly against an establishment of religion or an established church.  The anti-Erastian denial of the supposition that “the civil magistrate hath a controlling power over Synods with respect to the exercise of their ministerial authority” is quite consistent with the principle of co-ordinate jurisdiction with mutual subordination.  An equal forbearance to persecute any for their religion does not necessarily exclude positive support for some. 

Further on this exception, the 1789 version of the Confession removes the words “and by the power of the civil magistrate” from 20:4 and rewrites 23:3 to read:

“(3) Civil magistrates may not assume to themselves the administration of the Word and sacraments; or the power of the keys of the kingdom of heaven; or, in the least, interfere in matters of faith. Yet, as nursing fathers, it is the duty of civil magistrates to protect the church of our common Lord, without giving the preference to any denomination of Christians above the rest, in such a manner that all ecclesiastical persons whatever shall enjoy the full, free, and unquestioned liberty of discharging every part of their sacred functions, without violence or danger. And, as Jesus Christ hath appointed a regular government and discipline in his church, no law of any commonwealth should interfere with, let, or hinder, the due exercise thereof, among the voluntary members of any denomination of Christians, according to their own profession and belief. It is the duty of civil magistrates to protect the person and good name of all their people, in such an effectual manner as that no person be suffered, either upon pretense of religion or of infidelity, to offer any indignity, violence, abuse, or injury to any other person whatsoever: and to take order, that all religious and ecclesiastical assemblies be held without molestation or disturbance.”

To match these changes, the words “tolerating a false religion” are deleted from the Larger Catechism’s Question109:

“What are the sins forbidden in the second commandment? The sins forbidden in the second commandment are, all devising, counselling, commanding, using, and anywise approving, any religious worship not instituted by God himself; tolerating a false religion; the making any representation of God, of all or of any of the three persons, either inwardly in our mind, or outwardly in any kind of image or likeness of any creature whatsoever; all worshipping of it, or God in it or by it; the making of any representation of feigned deities, and all worship of them, or service belonging to them, all superstitious devices, corrupting the worship of God, adding to it, or taking from it, whether invented and taken up of ourselves, or received by tradition from others, though under the title of antiquity, custom, devotion, good intent, or any other pretence whatsoever; simony; sacrilege; all neglect, contempt, hindering, and opposing the worship and ordinances which God hath appointed.”

The result of these changes is that in the last sentence of 23:3, there is a statement of universal toleration and protection for all people regardless of there religious views.  Yet, more is expected of the magistrate in the case of the Christian church.  The influential constitutional writer of that period, Fletcher of Saltoun, gives the following definition: “To be tolerated is no more than to receive the compassion of the law, without the least share of power, encouragement, or approbation. To be established is to receive the approbation, judgment, and the whole will of the law; and a Church established is actually assumed into a share of the constitution of the Government, with such a share of its power as is proper to administer its own discipline.”   In those terms, the American Synod denies the advantages of establishment to any one denomination while expecting something more that toleration for all Christian denominations combined.  The principle of coordinate jurisdiction with mutual subordination has not been abandoned but reapplied less robustly in a new reality.

The Third Exception.

At first glance, it is hard to grasp which portion of the Westminster Confession is in mind in the third exception when the Synod states that it does not receive it as being “in any sense contrary to the Protestant succession to the throne of Great Britain”.  It would seem that the portion which is being explained is 23:4 which states that a difference in religion does not annul the scriptural injunction to obedience.  They are saying that they do not believe that portion of the Confession to require them to be Jacobites.  They are saying that there were sufficient civil, as well as religious, grounds to hold that James II&VII had forfeited his right to obedience and for there to be a new line of succession.

They made this statement in the context of a nation with divided loyalties.  Jacobitism was a live issue in their day, and it would be until it was shown that there would not be a restoration of a Catholic Stuart dynasty by the defeat of Charles Edward Stuart’s army at Culloden in 1746 and by the Pope’s refusal to recognise him as the rightful King of the United Kingdom when his father died in 1766. A reason for this matter to be in the minds of the members of Synod in 1729 was that the Crown has passed from George I to George II two years earlier securing for the time being the Protestant Succession.

To deal with these divided loyalties, all public figures, whether government, military, or ecclesiastical, were required to take an Abjuration Oaths, swearing that they denied all legitimacy or loyalty to Jacobite claims or persons, in order to hold office.  The Oath was to be enforced in all parts of the United Kingdom and in the Colonies.  The original oath predated the 1707 Union of the Parliaments of Scotland and England.  The form which it took during the reign of Queen Anne retained a reference to an Act of the pre-union English Parliament which said that the monarch must be a member of the Church of England.  This caused dissention in Scotland where the Protestant succession to the throne was not an issue among the majority of Presbyterians, but where the seeming erosion of protection for a Church of Scotland, Presbyterian in government, contained in the 1707 Act of Union was.  Among Dissenters in England and Wales, Ireland, and the Colonies, the Oath came in the midst of Anne’s Tory government bolstering the Church of England in reaction to William and Mary’s Whig regime’s extension of toleration to Dissenters.  The Synod’s third exception makes the positive statement of loyalty without the complications of the Oath.

The success of the American Revolution made the letter of this exception irrelevant in 1788-89.  Nevertheless, the revised Confession of Faith retains the portion of 23:4 which says: “…. much less has the Pope any power and jurisdiction over [civil magistrates] in their dominions, or over any of their people; and, least of all, to deprive them of their dominions, or lives, if he shall judge them to be heretics, or upon any other pretence whatsoever.”

The First Amendment.

Comparing the ecclesiastical exceptions and rewrites to the Constitution and its First Amendment, it might seem that the Presbyterians having declared their position earlier got what they wanted.  There is no Federal establishment of religion, and there is no hindrance to its free exercise.  But then the question comes: What is meant by religion?

The answer to that question largely lies with Thomas Jefferson and James Madison.  In 1779, Jefferson introduced a bill to the Virginia General Assembly (the State legislature) for the disestablishment of the Episcopal Church in the State.  The bill was postponed; and in 1784, Patrick Henry introduced an alternative bill seeking to replace state support for the Episcopal Church exclusively with a tax for the support of “teachers of the Christian religion” which would be given to the taxpayers chosen church, replacing one established Church with “multiple establishments”.  Madison opposed Henry’s bill and saw Jefferson’s bill through the legislature. The Episcopal Church was disestablished in 1786.

Further, in 1797, Joel Barlow, an a staunch Jeffersonian, negotiated a treaty between the United States and Tripoli of which two versions exist.  The version brought to America has an Article 11which reads: “As the government of the United States of America is not in any sense founded on the Christian Religion, as it has in itself no character of enmity against the laws, religious or tranquility of Musselmen, and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”

Inexplicably, the version held in Tripoli has an entirely different text in Article 11’s place.  While this raises many questions, the fact is that Congress ratified the treaty including Article 11, giving its imprimatur to the statement that “the government of the United States of America is not in any sense founded on the Christian Religion”.

Then, in 1802, Jefferson replied in the following terms to a letter from the Danbury, CT, Baptist Association, who lived in a State with a Congregationalist established church:

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

Even though the First Amendment appears in the context of established and non-established Christian denominations, according to those most involved in its composition and early application, the word “religion” means just that, whether it be the Christian religion or any other.  The revised Confession of Faith also appears in the context of established and non-established Christian denominations and is firmly against an established denomination of any stripe; yet, as it is understood by such as the Hodges and Thornwell, it does not exclude the idea of something not unlike an establishment of Christianity.  The Jeffersonians wanted a wall separating church and state.  The Presbyterians wanted a fence tall enough to mark the property line, but not so high that the neighbours could not talk over it.

Although they come out of the same revolutionary milieu, it is a mistake to take the First Amendment and assume that that is what the 1789 revisions to the Confession of Faith mean.