Review of Scott Douglas Gerber’s “Law and Religion in Colonial America: The Dissenting Colonies” New York: Cambridge University Press, 2024.
With perhaps a nod to the Puritans in Massachusetts and to Roger Williams in Rhode Island, most discussion of laws impacting religion in the United States focus on the role of James Madison and Thomas Jefferson in enacting the Virginia Statute for Religious Freedom and on the adoption and subsequent judicial interpretations of the First Amendment.
In this volume, Scott Gerber, a former law professor at Ohio Northern University, shifts the focus to England and to five of the 13 original colonies. In an unfootnoted assertion that I have no reason to doubt, Gerber observes that “England promulgated more laws of significance about religion than any other nation in the Early Modern period” (p. 3), and he cites 43 such laws from 1534 to 1740 (pp. 324-25).
He describes the diverse array of laws that followed Henry VIII’s decision to split with the Roman Catholic Church that were enacted under rival Anglican and Catholic monarchs respectively requiring oaths affirming or rejecting the idea of transubstantiation, accepting or rejecting the Book of Common Prayer, acknowledging or rejecting other Anglican and Catholic practices, and the like. He posits that this background, as much as the writings of any political theorists, provided the context with which to understand the views of church and state that developed within the original colonies. As the title suggests, this book focuses chiefly on those colonies that were most explicitly founded for religious reasons, namely Maryland, Rhode Island, Pennsylvania, Connecticut, and Massachusetts.
As he examines each colony, Gerber focuses on what he calls its primary “animating principle,” which, in what he presents as a departure from other historians, he believes can best be ascertained by examining laws and their applications in judicial decisions.
Maryland enacted early religious tolerance law
Gerber believes that George Calvert, the first Lord Baltimore, provided for religious tolerance for all Christians in a primary effort, sometimes concealed from public view, to provide freedom for fellow Roman Catholics. Writing about the Act Concerning Religion that was enacted in 1649, Gerber observes that “Baltimore’s goal was to compel both Maryland’s non-Catholic and Catholic residents to extend a modicum of civility towards one another on matters of religions, at least until they proved themselves ready to do so voluntarily” (p. 25). For a time, the animating principle of the colony was abandoned, voting was limited to Protestants, and the Book of Common Prayer was required for worship. As the American Revolution approached, Charles Carroll of Carrollton and others largely succeeded in resurrecting the colony’s original animating principle, although it was not until the U.S. Supreme Court decision on Torcaso v. Watkins (1961) that it invalidated a Maryland law requiring office-holders to affirm a belief in God.
Rhode Island animated by ‘liberty of conscience’
Rhode Island’s history is inextricably bound to the influence of Roger Williams who had founded Providence after being expelled from Massachusetts. The animating principle that he supplied was that of “liberty of conscience” (p. 45) in what was described as “a lively experiment” (p. 48). Williams was willing to extend such freedom even to Roman Catholics and Quakers, with whom he vehemently disagreed, although there were times in the colony’s history where Catholics, Jews, and Quakers received less favorable treatment than others.
Tolerance was the focus of Pennsylvania’s Quakers
William Penn, a Quaker founder of Pennsylvania, established that colony upon the foundation of a tolerance that was even broader than that advocated by John Locke’s Letter Concerning Toleration and was influenced in part by Penn’s own persecution in England and by the prior example of New Jersey. Penn extended religious freedoms to all Christian denominations and stressed that his “holy experiment” would permit “liberty of conscience,” including exempting Quakers who were conscientious objectors from military service, permitting them to testify by affirmation rather than by sworn oaths, and exempting Presbyterians from having to kiss the Bible when they took oaths. Penn also thought that regulation of morals was necessary to assure the colony’s success. Pennsylvania thus prohibited swearing, extramarital sex, theater performances, dancing, and most sports. Quakers were encouraged to settle their disputes among themselves before taking them to court. Similar provisions were made when Penn acquired Delaware, which did not officially become independent of Pennsylvania until 1776.
Connecticut was home to Puritan Congregationalism
The founders of Connecticut, who included Thomas Hooker, John Haynes and Roger Ludlow, established the colony (formed by the combination of the River Colony and the New Haven Colony) to provide a home for Puritan Congregationalism, and the colony’s preference for such assemblages continued until the adoption of the Connecticut Constitution of 1818. Gerber explains that “The Puritans believed in a separation of church and state, but not a separation of the state from God” (p. 137). Early penal laws, including 12 capital crimes for offenses as diverse as idolatry, witchcraft, murder, adultery and false witnessing, were accompanied by specific scriptural references. The so-called “Ludlow Code,” in turn, later borrowed heavily from the Massachusetts Body of Liberties. Regulations included banning the celebration of Christmas, which was associated with Roman Catholicism. When the colony’s written laws did not address situations, judges went directly to the Bible for guidance. The colony enforced laws limiting travel on the Sabbath and punishing those who did not attend church. In time it permitted Baptists and other “sober dissenters” to worship as they pleased making disestablishment “a complex process occurring for over a century” (p. 177).
Perfection of faith, Christian clarity inspires Massachusetts founders
Gerber treats the founding of Plymouth and Massachusetts Bay Colonies separately. Those in Plymouth were “Pilgrims” who had split from the Church of England whereas those in Massachusetts Bay were “Puritans” who hoped to purify that church from within. The former was best known for drawing up the Mayflower Compact and the latter for John Winthrop’s “Model of Christian Charity,” which evoked the image of a city on a hill. Gerber notes that “Pilgrims were committed to the perfection of their religious faith rather than to toleration of different faiths.” They believed “that the inhabitants of Plymouth Colony should be free to worship as God ordained.” (p. 189). They forbade Quakers from settling, expelled those who did, and sometimes exacted the death penalty on those who returned.
For a time all the New England colonies were joined through Articles of Confederation. One of the highlights of Puritan law-making was the Body of Liberties, which was compiled chiefly by Nathaniel Ward in 1641, that served as a bill of rights. In time, the religious enthusiasm in Massachusetts, which had led to the capital punishment of 15 people convicted of witchcraft, subsided but some form of religious establishment lasted until 1833. Gerber concludes that “Massachusetts may no longer be a Puritan commonwealth. It is not an irreligious commonwealth either” (p. 266).
It would be difficult to match Gerber’s meticulous survey of the laws of each of these dissenting colonies, which is a reminder that religious liberty was not uniform in the colonial period. Although Gerber seems somewhat more dismissive of colonies that were settled with more obvious secular objectives, I think he would find that, even in colonies where religious freedom was not the primary animating principle, there were those who relished the greater religious liberty they had in America than in Britain and planted additional seeds that also flowered over time into increased religious liberty.
This book review was published Nov. 7, 2023. John Vile is a professor of political science and dean of the University Honors College at Middle Tennessee State University.