LIBERTY, RELIGIOUS.

I. General Development

Historical Survey (§ 1).

The Evangelical Spirit, Especially in England (§ 2).

In America (§ 3).

Humanistic Influences (§ 4).

 

II. In Germany.

The Theory of Non-Toleration (§ 1).

The Situation at and During the Reformation (§ 2).

Toleration of Roman Catholics, Lutherans, and Reformed (§ 3).

Change in the Political Theory of the Church (§ 4).

Present Legal Status of Churches (§ 5).

Roman Catholic Attitude (§ 6).

I. General Development: Religious liberty is, in the fullest sense of the term, unrestricted freedom to believe, practise, and propagate any religion whatever or none.

(§ 1). Historical Survey. The Edict of Milan (see CONSTANTINE THE GREAT AND HIS SONS, I., § 4) issued by Constantine and Licinius in 313 seems to be the only ancient proclamation by a civil government of absolute religious liberty. The edict grants "both to the Christians and to all men freedom to follow the religion which they choose," "each one should have the liberty of worshiping whatever deity he pleases." "This has been done by us in order that we might not seem in any way to discriminate against any rank or religion." This action was taken in the interest of Christianity and the edict contains instructions for the restitution of all church property taken from Christians in the Diocletian persecution. Constantine's later policy in relation to non-Catholic Christian parties and paganism was inconsistent with the declarations of the edict. From this time onward nothing more liberal than toleration appears in civil legislation until modern times. Pleas for religious liberty were frequently made by persecuted minorities; but neither civil governments nor dominant ecclesiastical parties paid heed to them. Luther pleaded for liberty in the most thoroughgoing way (1519-20); yet when confronted with religious radicalism (1521 onward) he became convinced that only drastic measures of repression could save the situation and urged the rulers to spare not. Humanists and Socinians argued for a broad toleration, and some of them no doubt would have rejoiced to see absolute liberty of conscience incorporated in the civil constitutions and in the confessions of faith; but they were not optimistic enough even to hope for such a consummation. Balthasar Huebmaier (q.v.), when his life was being sought by the Austrian government and he was in imminent danger, wrote in 1524 a tract "Concerning Heretics and their Burners" (cf. H. C. Vedder, Balthasar Hübmaier, pp. 84-88, New York, 1905) in which he sought to show the heresy, anti-christian character, and futility of persecution for conscience's sake. Calvin was from the beginning an avowed antitolerationist. Regarding the Old-Testament theocracy as in an important sense a model for the Christian state, he thought it the duty of the church authorities to detect, convict, and denounce heretics and open sinners of every type, and of Christian magistrates to execute Church censures even to the extent of inflicting capital punishment in extreme cases. For the Christian minister or magistrate to allow a heretic to disseminate his errors was as little allowable as it would be to permit a miscreant to go about spreading the pestilence. Calvin had the full sympathy of Melanchthon, Butzer, Bullinger, Knox, and other leading reformers in his antagonism to religious liberty. In this he was followed for more than a century by English and American Puritans, Scottish Presbyterians, and by Reformed and Lutheran Churches in general. The progress of religious liberty has been greatly impeded also by the general conviction that the divergent religious opinions of minorities are malignant and inspired by the devil and that no treatment is too severe for the disseminators of diabolical error; that two forms of religion can not exist in the same state without disastrous consequences; that civil rulers have a right to determine the religion of their subjects (see TERRITORIALISM); that the established order is of divine right and that innovation is ipso facto evil. The Peace of Augsburg (1555; see AUGSBURG, RELIGIOUS PEACE OF) and the Peace of Westphalia (1648; see WESTPHALIA, PEACE OF) each in turn confirmed the states of Europe in territorialism.

(§ 2). The Evangelical Spirit, Especially in England. The two lines of influence already mentioned wrought mightily for the breaking down of the intolerance of conservatism, for a long time separately and at last cooperatively, namely the old Evangelical and the Humanistic. The old Evangelical spirit (represented by the Waldenses [q.v.], Peter of Chelcic, and the Bohemian Brethren [q.v.], in the Middle Ages, and by the Anabaptists and the Society of Friends in more recent times) made a sharp distinction between the Old Testament and the New Testament, making the latter alone an authoritative guide in doctrine and polity and laying chief stress on the very words and acts of Christ. Most of them assumed an attitude of passive resistance toward civil governments, denying the possibility of a Christian state (if all were Christians there would be no need of civil government), and rejecting magistracy, oaths, warfare, and capital punishment as inconsistent with the spirit of Christianity and with the precepts and example of Christ and the apostles. To use coercion in connection with religion seemed to them monstrous. Interpreting the Sermon on the Mount literally they thought it wrong to resist evil or to defend themselves. Only when fired by chiliastic enthusiasm and convinced that it was the divine will that they should smite the ungodly and become instruments for the establishment of the kingdom of Christ on earth (see TABORITES; MUENZER, THOMAS; FIFTH MONARCHY MEN) did they trust in the arm of flesh. This quietistic form of Christianity, while it produced the noblest examples of self-sacrificing devotion and of evangelistic zeal, was too much out of accord with the life and thought of the times to exert a strong influence in favor of religious liberty; though the Mennonites in the Netherlands became numerous and wealthy enough to gain the cooperation of the government in efforts to secure toleration for the persecuted in other lands. It was only when the old Evangelical type of New-Testament Christianity became blended with Calvinistic Puritanism that it was able powerfully to influence the Christian world in favor of liberty of conscience. Robert Browne (q.v.) reached the conviction, probably under Mennonite influence (1580-84), that civil magistrates ought not to punish religious delinquencies or in any way to interfere with the rights of conscience. His immediate Separatist followers failed to grasp the principle and he himself soon abandoned it. About 1609 a party of English Separatists led by John Smyth, exiled in Holland, reached antipedobaptist convictions and at the same time adopted the old Evangelical principle of separation of Church and State and liberty of conscience in the most absolute sense (see BAPTISTS, I., §§ 1-4). A portion of the company under the leadership of Helwys and Murton returned to England (1611 or 1612) and members of this Arminian antipedobaptist party addressed to the government and published a series of pleas for absolute liberty of conscience (1614, 1615, 1620) that influenced wide circles of readers (see BAPTISTS, § 9; cf. Tracts on Liberty of Conscience, Hanserd Knollys Society, London, 1846). The triumph of the Independents (Baptist and Congregational) first over established episcopacy and then over Presbyterianism, which sought to become the established Church and purposed the suppression of all forms of dissent, led to a measure of religious equality under Cromwell (1649, sqq.) for such Congregationalists, Baptists, and Presbyterians as were friendly to the government and of suitable education and character, all alike being admitted to endowed pastorates when invited by the parishioners; but there was no thought of tolerating Roman Catholics, High-church Episcopalians, or Unitarians. Toleration of Evangelical dissent has prevailed in England from 1689 and dissenters' disabilities have been gradually diminished; but even now the free Churches of England are struggling valiantly for religious equality which means the disestablishment and the disendowment of the established Church.

(§ 3). In America. In America the early British colonies were formed on an antitolerationist basis, the Calvinistic theocratic idea prevailing in Massachusetts and Connecticut and the Anglican establishment taking control in Virginia and other Southern colonies and in New York after it was taken from the Dutch (see UNITED STATES OF AMERICA, RELIGIOUS HISTORY OF). Roger Williams (q.v.; also BAPTISTS, II., §§ 1-2), having been banished from Massachusetts, established a small colony at Providence on the basis of liberty of conscience (1636) and, in cooperation with John Clarke (q.v.; also BAPTISTS, II., § 3), the larger colony subsequently known as Rhode Island (1647). The publication of the pleas for liberty of conscience by Williams and Clarke, and their association in England with the leading statesmen of the Cromwellian time no doubt greatly influenced opinion there. In Maryland Lord Baltimore, the proprietor, tolerated and encouraged a body of Puritans who had been driven from Virginia on account of their non-conformity (1643). In Virginia the Baptists, supported to some extent by Presbyterians and freethinkers (Jefferson, Madison, and, others), waged an uncompromising warfare against the established Church (1776-99) and succeeded in securing its disestablishment and disendowment, and absolute religious equality (see BAPTISTS, II., § 6). They were also influential in securing the insertion of the clause in the Constitution of the United States that guarantees religious liberty. The triumph of religious liberty in Virginia and the provision for it in the national Constitution led to the removal of all restrictions to the free exercise of religion in Connecticut (1820) and in Massachusetts (1833). The successful experiment of religious liberty on so large a scale soon made its influence felt throughout the Christian world. American influence was a factor in the French Revolution. After the abolition of Christianity by the Terrorists, Napoleon put Roman Catholicism, Lutheranism, Calvinism, and other recognized forms of religion upon the same basis of state support and state control in France, the Netherlands, and other parts of his empire. Complete religious liberty has recently come about in France through the separation of Church and State (see FRANCE).

(§ 4). Humanistic Influences. Side by side with the influence of the old Evangelical New-Testament Christianity, the advance of liberal thought under the influence of Humanism has wrought for freedom of thought and liberty of conscience. Skeptical minds not only demand toleration for themselves; but are not so absolutely sure that their own views of religion are exclusively valid as to consider it necessary to force them upon others. The growth of scientific study and the application of the historical method to the study of religion have tended to break down dogmatism and intolerance. The French freethinking of the eighteenth century not only prepared the way for the French Revolution, but covered Europe and America with its influence. French freethinking cooperated with Baptist insistence on separation of Church and State and equality of rights for all religious parties in the American struggle. See CONVENTICAL ACT; CORPORATION ACT; FIVE MILE ACT; TEST ACT; TOLERATION ACT OF 1689; UNIFORMITY, ACTS OF.

A. H. NEWMAN.

II. In Germany: There is now no German State which does not grant freedom of conscience, both to individuals and to communities which are united by common religious interests. In itself toleration may he observed toward non-Christian as well as toward Christian bodies, as in Germany toward the Jews; yet in Germany the legislation concerning the Jews has not arisen from motives of toleration but of alien laws, and as it still retains this character falls outside the limits of the present discussion.

(§ 1). The Theory of Non-Toleration. A Church, as such, while loving and patient in pastoral care, can not be tolerant either in dogmatics or ethics. For since an individual Church exists simply because it recognizes a certain concept of Christian revelation as the only correct one, it can not permit divergent concepts within its fold. This was the actual attitude assumed before the Reformation, especially as the Church then not only controlled both her own members, so that she could exclude irreclaimable heretics from her communion, but also had such power over the State that the latter would punish such heretics, if necessary, with death. The constitution Ad decus of Frederick II. (1220), requiring the death penalty, repeats almost literally the third chapter of the fourth Lateran Council (1215), and is rendered still more strict by the same emperor's constitutions Catharos (1232) and Patarenos (1238). The enforcement of the death penalty by burning, prescribed also by the Sachsenspiegel (Landrecht, II., xiv. 17) and the Bamberg criminal code of 1507 (art. 30), is illustrated by the proceedings against Huss at Constance and by the action of the German princes against the Hussites. This use of power of the pre-Reformation Church is fully explicable from her point of view. If, as she believed, she was the one visible Church founded by Christ, if every one baptized belonged to her, if she was responsible for their salvation, and if this salvation depended on the obedience of each individual to her authority, there was no reason for her to hesitate to use her influence with the State to gain her such obedience. The Church had developed into a dogmatic system her claim to control the executive means of the State in given cases to her advantage; and as long as this principle was acknowledged by the authorities of the State, its powers were in a sense her own, to be employed when conscience dictated.

(§ 2). The Situation at and During the Reformation. When Luther, at the Leipsic disputation, rejected the doctrine that the interpretation of the Bible was to be conditioned by the authority of the Church, the latter appealed to the laws against heretics. But these were ignored by those princes who held that the Church must be reformed and who were in sympathy with Luther's views. On the other hand, the ban against Luther and the bull Decet Romanum pontificem (Jan. 3, 1521) led to the Edict of Worms (Jan. 26, 1521; antedated Jan. 8), which followed the laws against heretics, declared Luther an outlaw, and required the local authorities to imprison him and his adherents. Other princes, however, refused to execute the edict, declaring that they could not reconcile it with their duty to their subjects and their land; and in view of the wide-felt need of a religious reformation, and in consideration of the unsettled religious conditions, the Diet of Speyer (Aug. 27, 1526) declared that, until a council should have been held, no prince should be obliged to obey the edict. This enactment at Speyer was the first German law of toleration, although primarily it was merely a provisional suspension of a law which was by no means abrogated. The next step in advance was the religious peace of Augsburg in 1555 (see AUGSBURG, RELIGIOUS PEACE OF). The most promising, though unsuccessful, attempt to force the German princes to obey the Edict of Worms was made in the Schmalkald War, and the proviso of 1526 now became definite. Although the old laws against heretics were still in force, it was no longer possible, by the laws of the empire, to secure their obedience from such princes as would not maintain them in their dominions. A second fruitless attempt to have the laws against heretics enforced was made by the Roman Catholics in the Thirty Years' War (q.v.), but with the Peace of Westphalia (Oct. 24, 1648; see WESTPHALIA, PEACE OF; and below) the religious peace of Augsburg was confirmed by imperial law. Nevertheless, this merely gave the German princes a right which they had not legally possessed before, permitting them, in so far as they were unfettered by agreements with their estates, to enforce or ignore the old laws against heretics. The empire was accordingly divided, in the eyes of the Curia, into States "in which the Holy Office is exercised," and those "in which heretics rage unpunished." But it must be borne in mind that anything like the modern concept of toleration was equally unknown to the Protestants as well. The theory of the Reformers was that the State had received authority not only to maintain the law in general, but the law of God, especially as set forth in the Decalogue, in particular. In virtue of the First Table, therefore, the State was divinely required to permit only the right worship of God. The pre-Reformation relation of Church and State thus received a theological foundation. Toleration of any worship which was "not right" was accordingly excluded, and its prevention was a duty for which the State was responsible to God--the only change was the abolition of the criminal proceedings against heretics, and the substitution of police regulation. Since, however, neither Roman Catholic nor Protestant would admit that his opponent also taught true doctrine, it became practically necessary merely to recognize the power of the authority of each country as purely personal, a concept later expressed in the phrase "whose is the land, his is the religion." Nevertheless, the Protestants gained the one point that those who adhered to the Augsburg Confession could only be banished by Roman Catholic princes, and not brought before a criminal court.

(§ 3). Toleration of Roman Catholics, Lutherans, and Reformed. A further step was made in the Peace of Westphalia, which, taught by the bitter lesson of the Thirty Years' War, proceeded to real tolerance, and first officially employed the term. It enacted that Roman Catholics in Protestant lands, and Lutherans and Reformed in Roman Catholic lands, Catholics, should be "tolerated patiently" (patienter tolerentur) if they rendered due obedience to the civil authorities and caused no disturbance. They were likewise granted the right of simple private worship. No other religions than those just mentioned, however, were to be "received or tolerated" in the Holy Roman Empire. Thus arose the distinction long maintained between "received" and "tolerated" religion. The Roman Catholic Church declared these enactments of toleration in the Peace of Westphalia null and void by the bull Zelo demos Dei (Nov. 20, 1648), and in consequence of the strict Lutheran insistence on the "guardianship of the First Table" likewise had cause to refuse obedience, especially as the Protestants came to hold that Roman Catholicism could be tolerated only when civil authority was insufficient to repress it, or when the State was in such condition that the repression could not be effected without civil war and effusion of blood, or when its repression would lead to greater harm than its toleration. This rigid adherence to the "guardianship of the First Table," however, could be carried out only in the narrow domains of the old empire; in lands of more diverse interests a larger spirit was needful. This was first shown in Holland, whence the new movement spread to Germany, especially the rising State of Prussia. When the Lutheran princes of the Palatine Electorate (1560), Bremen (1568), Nassau (1577), Wittgenstein, Solms, and Wied (1577-86), Tecklenburg and Steinfurt (1588), Anhalt (1596), Hesse-Cassel (1604), and Lippe (1605) entered the Reformed Church, they obliged their subjects to follow them; but when, in 1614, the Elector John Sigismund of Brandenburg did likewise, he merely permitted the coexistence of the Lutheran and Reformed Churches in his territories. This precedent of two "received" Churches side by side was taken by the seventh article of the Osnabrück treaty of 1648 as the model of general regulations on the mutual relations of Lutheran and Reformed Churches in one and the same territory. This marks a change from a principle of intolerance to one of tolerance, and of the substitution of a purely political concept of the State for a theological theory.

(§ 4). Change in the Political Theory of the Church. Since the weakness of the empire and the variety of conditions in the individual States were fatal to any national basis for the State in Germany, the social theory, largely represented at the time by Dutch views, and aided since the Renaissance by the trend of juristic and political tenets, formed the necessary substitute. The State being regarded as a congeries of interests united by social contracts, and its authority being derived from a contract to obedience, two theories of the Church became possible. Either it might be assumed, with Hugo Grotius, that the maintenance of the Church as an institution was a function of the State, and that the administration of the Church was essentially administration of the State, this being Territorialism (q.v.). Or it could be supposed that the conditions of religious freedom which had preceded the rise of the State had not been abrogated by the contract of the State. By the latter hypothesis, termed Collegialism (q.v.), first developed by Samuel Pufendorf (q.v.), religion remained a matter of individual freedom, even under the State, and entitled to the protection of the State. Territorialism had been in use for ages, with the substitution of political for theological premises. Collegialism was the way in which the State began the restoration of the social independence inherent in both the Roman Catholic and the Protestant Church. Viewing both Churches as unions of religious interests, the State could without prejudice determine under what conditions, based on its general interests, it could and would permit a plurality of such unions of religious interests to coexist. Thus the State reached the standpoint of modern tolerance, as it now prevails in Germany. Yet this point of view was reached only gradually. The Elector John Sigismund of Brandenburg, mentioned above, permitted the Arminians to hold private worship in 1683, and three years later allowed the Reformed refugees from France to have public religious services. But what was allowed by the empire to Prussia was forbidden in the smaller States. Thus when Count Ernest Casimir of Runkel and Isenburg promised religious freedom to all who should settle at Büdingen (Mar. 29, 1712), even though they might not be either Roman Catholics, Lutherans, or Reformed, he was fined and obliged to retract his offer. Prussia, however, continued in her course, and Frederick the Great granted religious freedom to Mennonites, Socinians, Arians, Schwenckfelders, and other sects. On the other hand, he never issued any law of toleration, nor did even the Roman Catholic Church gain full equality with the two Protestant bodies during his reign. The example of Frederick, who was more influenced by Voltaire and the Encyclopedists than by Pufendorf and Thomasius, was followed in the edict of toleration promulgated by Joseph II. of Austria (Oct. 18, 1781) and by the Elector Clement Wenzel of Treves in 1783. Finally, by the religious edict of 1788 and the general Prussian statute of 1794 the Roman Catholic Church received equal privileges with the Lutherans and the Reformed.

In France Protestantism was again recognized by Louis XVI. in Nov., 1787, and two years later the French Revolution declared for entire liberty of worship, a position retained under Napoleon. As a result of the extension of this legislation to the German territories west of the Rhine which had come into the possession of France in exchange for districts east of the same river, religious toleration was granted to the Protestants in the archdiocese of Cologne and the dioceses of Münster and Paderborn. A like course was followed by Bavaria (Aug. 21, 1801), and by Cleve-Berg, the grand duchy of Frankfort, and the kingdom of Westphalia. But while the German Act of Confederation (Jan. 8, 1815) granted toleration to Roman Catholics, Lutherans, and Reformed, it referred everything regarding the development, administration, and organic life of the Churches to special legislation. Accordingly, in the legislation of both Bavaria (May 26, 1818) and Baden (Aug. 22, 1818) the right of private worship was extended to others than members of the three great ecclesiastical bodies. The only further step now possible was the extension of this privilege to public worship; and this was granted by laws of Baden (Feb. 17, 1849) and Prussia (Jan. 31, 1850), these and similar laws following the Frankfort statutes of 1848. The last vestige of religious discrimination was removed by the law of the German Confederation of July 3, 1869, which granted complete civil equality to the various confessions.

(§ 5). Present Legal Status of Churches. Since the beginning of the nineteenth century the German theory of the legal status of the Church passed through the entire revolution possible from the stage after bare existence. Beginning with the exclusion of adherents of unfavored religious bodies from full civil rights, it advanced to the permission of private worship, either without clergy ("simple") or with them ("qualified"). The next step was the right to hold public worship, which was "private" when the religious community in question was not essentially privileged, and "public" when it was so privileged by the State. This later came to be construed as the granting of corporation-rights to a Church, which, in such States as Oldenburg, Waldeck, and Prussia, can be done only by the passage of a law, as was done in Prussia in 1874 and 1875, for example, for the Baptists and Mennonites. Religious communities can secure the rights of a corporation, unless objected to by the State, by being entered in the register kept by the local authorities; though where a special law is necessary for the acquisition of such rights, the need of such laws is not thereby abrogated. The Imperial Criminal Code (§ 166) grants any religious body with corporation-rights within the empire special protection against public insults to its institutions and usages; and special privileges are also accorded the clergy of such bodies. Since the Peace of Westphalia, therefore, toleration has been extended from the Roman Catholics, Lutherans, and Reformed to all religions, so that the minimum accorded to any religious body is now "private" public worship.

(§ 6). Roman Catholic Attitude. The Roman Catholic Church maintains her pre-Reformation attitude toward toleration by the State, as protested against both by the papal nuncio Chigi (Oct. 26, 1648) and the bull Zelo domus Dei (Nov. 20, 1648), on the ground that the State has no authority to issue such regulations. Similar protests have repeatedly been made by the Curia, as by the briefs of Pius VII. against the toleration of Protestants in Bavaria (Feb. 13 and Nov. 19, 1803), the encyclicals Mirari vos of Gregory XVI. (Aug. 15, 1832), Pius IX. (Dec. 8, 1864), and Leo XIII. (Nov. 1, 1885). Nevertheless, this church does not condemn those who, for the promotion of great good or the avoidance of grave scandal, tolerate the existence of various cults in the State. At the same time she insists that no one may be forced to accept the faith against his will, although this is construed as applying to non-Christians, and not to baptized Protestants, the latter being regarded as heretics, and hence subject to compulsory conversion by the secular arm. Leo XIII., while maintaining this position, declared that a State tolerating heretics should not be incontinently condemned, but should be temporized with as circumstances should demand. The official Roman Catholic rejection of the principle of toleration accordingly remains unchanged in essence, and it is, therefore, her endeavor and hope that the State may some time be convinced of the justness of her attitude, and again adopt the policy of non-toleration.

(E. FRIEDBERG.)