The [First Amendment] clause speaks of “an establishment of religion.” What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother-country, and its meaning is to be ascertained by ascertaining what that establishment was. It was the connection, with the state, of a particular religious society, by its endowment at the public expense, in exclusion of, or in preference to, any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship or religious observances. These three particulars constituted that union of Church and State of which our ancestors were so justly jealous and against which they so wisely and carefully provided…If Congress has passed, or should pass, any law which, fairly construed, has in any degree introduced, or should attempt to introduce, in favor of any church, or ecclesiastical association, or system of religious faith, all or any one of these obnoxious particulars, – endowment at the public expense, peculiar privileges to its members, or disadvantages or penalties upon those who should reject its doctrines or belong to other communions, – such law would be a “law respecting an establishment of religion,” and, therefore, in violation of the Constitution.
But no law yet passed by Congress is justly liable to such an objection…We have chaplains in the army and navy, and in Congress; but these are officers chosen with the freest and widest range of selection, – the law making no distinction whatever between any of the religions, Churches, or professions of faith known to the world. Of these, none by law is excluded; none has any priority of legal right. True, selections, in point of fact, are always made from some one of the denominations into which Christians are distributed; but that is not in consequence of any legal right or privilege, but by the voluntary choice of those who have the power of appointment. This results from the fact that we are a Christian people, – from the fact that almost our entire population belongs to or sympathize with some one of the Christian denominations, which compose the Christian world. And Christians will of course select, for the performance of religious services, one who professes the faith of Christ. This, however, it should be carefully noted, is not by virtue of provision, but voluntary choice.
We are Christians, not because the law demands it, not to gain exclusive benefits or to avoid legal disabilities, but from choice and education; and in a land thus universally Christian, what is to be expected, what desired, but that we shall pay a due regard to Christianity, and have a reasonable respect for its ministers and religious solemnities? … How comes it that Sunday, the Christian Sabbath, is recognized and respected by all the departments of government? In the law, Sunday is a “dies non;” it cannot be used for the service of legal process, the returns of writs, or other judicial purposes. The executive departments, the public establishments, are all closed on Sundays; on that day neither House of Congress sits…. Here is a recognition by law, and by universal usage, not only of a Sabbath, but of the Christian Sabbath, in exclusion of the Jewish or Mohammedan Sabbath. Why, then, do the petitioners exclaim against this invasion of their religious rights? Why do they not assert that a national Sabbath, no less than a national Church, is an establishment of religion? …The recognition of the Christian Sabbath is complete and perfect. The officers who receive salaries, or per-diem compensation, are discharged from duty on this day, because it is the Christian Sabbath, and yet suffer no loss or diminution of pay on that account….
They intended, by this Amendment, to prohibit “an establishment of religion” such as the English Church presented, or any thing like it. But they had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people; they did not intend to prohibit a just expression of religious devotion by the legislators or the nation, even in their public character as legislators; they did not intend to send our armies and navies forth to do battle for their country without any national recognition of that God on whom success or failure depends; they did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistical apathy. Not so had the battles of the Revolution been fought and the deliberations of the Revolutionary Congress been conducted. On the contrary, all had been done with a continual appeal to the Supreme Ruler of the World, and an habitual reliance upon His protection of the righteous cause which they commended to His care.
United States Congress (March 27, 1854), received the report of Mr. Meacham of the House Committee on the Judiciary:
“Congress shall make no law respecting an establishment of religion.” Does our present practice violate that article? What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rites and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive and penalties for the non-conformist. There never was as established religion without all these. Is there now, or has there ever been, anything of this in the appointment of chaplains in Congress, or army, or navy? The practice before the adoption of the Constitution does not seem to have changed the principle in this respect. We ask the memorialists to look at the facts.
First, in the army: chaplains were appointed for the Revolutionary army on its organization; rules for their regulation are found among the earliest of the articles of war. Congress ordered, on May 27, 1777, that there should be one chaplain to each brigade of the army, nominated by the brigadier-general, and appointed by Congress, with the same pay as colonel, and, on the 18th of September following, ordered chaplains to be appointed to the hospitals in the several departments, with the pay of $60 per month, three rations per day, and forage for one horse.
When the Constitution was formed, Congress had power to raise and support armies, and to provide for and support a navy, and to make rules and regulations for the government and regulation of land and naval forces. In the absence of all limitations, general or special, is it not fair to assume that they were to do these substantially in the same manner as had been done before? If so, then they were as truly empowered to appoint chaplains as to appoint generals or to enlist soldiers. Accordingly, we find provision for chaplains in the acts of 1791, of 1812, and of 1838. By the last there is to be one to each brigade in the army; the number is limited to thirty, and these in the most destitute places. The chaplain is also to discharge the duties of schoolmaster. The number in the navy is limited to twenty-four. Is there any violation of the Constitution in these laws for the appointment of chaplains in the army and navy? If not, let us look at the history of chaplains in Congress. Here, as before, we shall find that the same practice was in existence before and after the adoption of the Constitution. The American Congress began its session September 5, 1774. On the second day of the session, Mr. Samuel Adams proposed to open the session with prayer.
I give Mr. Webster’s account of it:
“At the meeting of the first Congress there was a doubt in the minds of many about the propriety of opening the session with prayer; and the reason assigned was, as here, the great diversity of opinion and religious belief; until, at last, Mr. Samuel Adams, with his gray hairs hanging about his shoulders, and with an impressive venerableness now seldom to be met with (I suppose owing to different habits), rose in that assembly, and, with the air of a perfect Puritan, said it did not become men professing to be Christian men, who had come together for solemn deliberation in the hour of their extremity, to say there was so wide a difference in their religious belief that they could not, as one man, bow the knee in prayer to the Almighty, whose advice and assistance they hoped to obtain; and, Independent as he was, and an enemy to all prelacy as he was known to be, he moved that Rev. Mr. Duche’, of the Episcopal Church, should address the throne of grace in prayer. John Adams, in his letter to his wife, says he never saw a more moving spectacle. Mr. Duche’ read the Episcopal service of the Church of England; and then, as if moved by the occasion, he broke out into extemporaneous prayer, and those men who were about to resort to force to obtain their rights were moved to tears; and floods of tears, he says, ran down the cheeks of the pacific Quakers, who formed part of that interesting assembly; and, depend upon it, that where there is a spirit of Christianity, there is a spirit which rises above form, above ceremonies, independent of sect or creed and the controversies of clashing doctrines.”
That same clergyman was afterwards appointed chaplain of the American Congress. He had such an appointment five days after the Declaration of Independence. On December 22, 1776, on December 13, 1784, and on February 29, 1788, it was resolved that two chaplains should be appointed. So far for the old American Congress. I do not deem it out of place to notice one act, of many, to show that Congress was not indifferent to the religious interests of the people; and they were not peculiarly afraid of the charge of uniting Church and State. On the 11th of September, 1777, a committee having consulted with Dr. Allison about printing an edition of thirty thousand Bibles, and finding that they would be compelled to send abroad for type and paper, with an advance of 10,272 pounds sterling, 10 shillings, Congress voted to instruct the Committee on Commerce to import twenty thousand Bibles from Scotland and Holland into the different ports of the Union. The reason assigned was that the use of the book was so universal and important. Now, what was passing on that day? The army of Washington was fighting the battle of Brandywine; the gallant soldiers of the Revolution were displaying their heroic though unavailing valor; twelve hundred soldiers were stretched in death on that battle-field; Lafayette was bleeding; the booming of the cannon was heard in the hall where Congress was sitting, in the hall from which Congress was soon to be a fugitive. At that important hour Congress was passing an order for importing twenty thousand Bibles: and yet we have never heard that they were charged by their generation of any attempt to unite Church and State, or surpassing their powers to legislate on religious matters.
There was a convention assembled between the old and new forms of government. Considering the character of the men, the work in which they were engaged, and the results of their labors, I think them the most remarkable body of men ever assembled. Benjamin Franklin addressed that body on the subject of employing chaplains; and certainly Franklin will not be accused of fanaticism in religion, or of a wish to unite Church and State…. There certainly can be no doubt as to the practice of employing chaplains in deliberative bodies previous to the adoption of the Constitution. We are, then, prepared to see if any change was made in that respect in the new order of affairs.
The first Congress under the Constitution began on the 4th of March, 1789; but there was not a quorum for business till the 1st of April. On the 9th of that month. Oliver Ellsworth was appointed, on the part of the Senate, to confer with a committee of the House of rules, and on the appointment of chaplains. The House chose five men, – Boudinot, Bland, Tucker, Sherman, and Madison. The result of their consultation was a recommendation to appoint two chaplains of different denominations, one by the Senate and one by the House, to interchange weekly. The Senate appointed Dr. Provost on the 25th of April. On the 1st day of May, Washington’s first speech was read to the House, and the first business after that speech was the appointment of Dr. Linn as chaplain. By whom was this plan made? Three out of six of that joint committee were members of the convention that framed the Constitution. Madison, Ellsworth, and Sherman passed directly from the hall of the convention to the hall of Congress. Did they not know what was constitutional? The law of 1789 was passed in compliance with their plan, giving chaplains a salary of $500. It was re-enacted in 1816, and continues to the present time. Chaplains have been appointed from all the leading denominations, Methodist, Baptist, Episcopalian, Presbyterian, Congregationalist, Catholic, Unitarian, and others.
I am sure that one of our petitioners might truly reply that the article was not in the body of the Constitution, but was one of the amendments recommended by Virginia. This does not weaken the argument in favor of chaplains. In the same convention of Virginia, which proposed amendments, James Madison, James Monroe, and John Marshall were members. All these men were members closely connected with the Government. Madison and Monroe were members of Congress when the First Amendment was adopted and became a part of the Constitution. Madison was a member of the convention framing the Constitution, of the convention proposing the amendment, and of Congress when adopted; and yet neither Madison nor Monroe ever uttered a word or gave a vote to indicate that the appointment of chaplains was unconstitutional. The Convention of Virginia elected on its first day a chaplain, Rev. Abner Waugh, who every morning read prayers immediately after the ringing of the bell for calling the convention. No one will suppose that convention was so inconsistent as to appoint their chaplain for the own deliberative assembly in the State of Virginia, and then recommend that this should be denied to the deliberative bodies of the nation….At the adoption of the Constitution, we believe every State – certainly ten of the thirteen – provided as regularly for the support of the Church as for the support of the Government: one, Virginia, had the system of tithes. Down to the Revolution, every colony did sustain religion in some form. It was deemed peculiarly proper that the religion of liberty should be upheld by a free people. Had the people, during the Revolution, had a suspicion of any attempt to war against Christianity, that Revolution would have been strangled in its cradle. At the time of the adoption of the Constitution and the amendments, the universal sentiment was that Christianity should be encouraged, not any one sect. Any attempt to level and discard all religion would have been viewed with universal indignation. The object was not to substitute Judaism or Mohammedanism, or infidelity, but to prevent rivalry among sects to the exclusion of others…. It must be considered as the foundation on which the whole structure rests. Laws will not have permanence or power without the sanction of religious sentiment, – without a firm belief that there is a Power above us that will reward our virtues and punish our vices. In this age there can be no substitute for Christianity: that, in its general principles, is the great conservative element on which we must rely for the purity and permanence of free institutions. That was the religion of the founders of the republic, and they expected it to remain the religion of their descendants. There is a great and very prevalent error on this subject in the opinion that those who organized this Government did not legislate on religion.
United States Congress (May 1854), in the Thirty-Fourth Congress assembled, Nathaniel P. Banks of Massachusetts being Speaker of the House, passed a resolution in the House which declared:
Whereas, The people of these United States, from their earliest history to the present time, have been led by the hand of a kind Providence, and are indebted for the countless blessings of the past and present, and dependent for continued prosperity in the future upon Almighty God; and whereas the great vital and conservative element in our system is the belief of our people in the pure doctrines and divine truths of the gospel of Jesus Christ, it eminently becomes the representatives of a people so highly favored to acknowledge in the most public manner their reverence for God.