CHAPTER VII. RELIGIOUS LIBERTY IN THE ANGLOAMERICAN COLONIES THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN. THE democratic idea, upon which the constitution of the Reformed Church is based, was carried to its logical conclusion in England toward the end of the sixteenth century, and first of all by Robert Browne and his followers. They declared the Church, which was identical with the parish, to be a community of believers who had placed themselves under obedience to Christ by a compact with God, and they steadfastly recognized as authoritative only the will of the community at the time being, that is, the will of the majority.1 Persecuted in England Brownism transformed itself on Dutch soil, 1 Weingarten, Die Revolutionskirchen Englands, p. 21. especially through the agency of John Robinson, into Congregationalism, in which the earliest form of the Independent movement made its appearance. The principles of Congregationalism are first complete separation of Church and State and then the autonomy of each separate parish,—as a petition addressed to James I. in 1616 expresses it: the right is exercised "of spiritual administration and government in itself and over itself by the common and free consent of the people, independently and immediately under Christ. This sovereign individualism in the religious sphere led to practical consequences of extraordinary importance. From its principles there finally resulted the demand for, and the recognition of, full and unrestricted liberty of conscience, and then the asserting of this liberty to be a right not granted by any earthly power and therefore by no earthly power to be restrained. But the Independent movement could not confine itself to ecclesiastical matters, it was forced by logical necessity to carry its fundamental doctrines into the political sphere. 2 Ibid., As the Church, so it considered the state and every political association as the result of a compact between its original sovereign members. This compact was made indeed in pursuance of divine commandment, but it remained always the ultimate legal basis of the community. It was concluded by virtue of the individual's original right and had not only to insure security and advance the general welfare, but above all to recognize and protect the innate and inalienable rights of conscience. And it is the entire people that specifically man for man concluded this compact, for by it alone could every one be bound to respect the self-created authority and the self-created law. The first indications of these religiouspolitical ideas can be traced far back, for they The connection of the Puritan-Independent doctrine of the state-compact with the Puritan idea of church covenants is brought out by Borgeaud, p. 9. Weingarten (p. 288) remarks forcibly of the Independents, "The right of every separate religious community freely and alone to decide and conduct their affairs was the foundation of the doctrine of the sovereignty of the people, which they introduced into the political consciousness of the modern world." were not created by the Reformation. But the practice which developed on the basis of these ideas was something unique. For the first time in history social compacts, by which states are founded, were not merely demanded, they were actually concluded. What had until then slumbered in the dustcovered manuscripts of the scholar became a powerful, life-determining movement. The men of that time believed that the state rested upon a contract, and they put their belief into practice. More recent theory of public law with only an imperfect knowledge of these events frequently employed them as examples of the possibility of founding a state by contract, without suspecting that these contracts were only the realization of an abstract theory. On October 28, 1647, there was laid before the assembled Council of Cromwell's army a draft, worked out by the Levellers, of a new constitution for England, which later, greatly enlarged and modified," was First reproduced in Gardiner, History of the Great Civil War, III, London, 1891, pp. 607609. 5 The final text in Gardiner, Constitutional delivered to Parliament with the request that it be laid before the entire English people for signature. In this remarkable document the power of Parliament was set forth as limited in a manner similar to that later adopted by the Americans, and particulars were enumerated which in future should not lie within the legislative power of the people's representatives. The first thing nained was matters of religion, which were to be committed exclusively to the command of conscience. They were reckoned among the inherent rights, the "native rights", which the people were firmly resolved to maintain with their utmost strength against all attacks. Here for the first and last time in England was an inherent right of religious liberty asserted in a proposed law. This right is recognized to-day in England in legal practice, but not in any expressly formulated principle.' Documents of the Puritan Revolution, Oxford, 1889, pp. 270-282. Gardiner, History, III, p. 568. 8 7 "That matters of religion and the ways of God's worship are not at all entrusted by us to any human power." Gardiner, History, p. 608. 8 Cf. the text in Gardiner, History, p. 609. 9 Cf. Dicey, loc. cit., pp. 229, 230, where |