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i 847.



DISCOURSE,



DELIVERED BEFORE THE



RHODE-ISLAND HISTORICAL SOCIETY,



ON THE EVENING OF



lUebncsbaj3, lanuarg 13, 1847.



BY HON. JOB DURFEE,

CHIEF JUSTICE OF RHODE-ISLAND.



PUBLISHED AT THE REQUEST OF THE SOCIETY.



PROVIDENCE:
CHARLES BURNETT, JR.

1847.



Q^cr^^



2.



DISCOURSE.



Gentlemen of the HisToracAL Society:

In consequence of my compliance with the request of your committee —
a compliance, perhaps, unfortunate both for you and me — it has become
my duty to address you, and our fellow-citizens generally, upon a purely
Rhode-Island theme. I shall, accordingly, speak to you of that Idea of
Government, which was actualized, for the first time in Christendom, here
in this State, by those who described themselves as "a poor colony, con-
sisting mostly of a birth and breeding of the Most High, formerly from the
mother-nation in the bishops' days, and latterly from the New-England
over-zealous colonies." I shall speak to you of the origin of this idea —
of the various forms which it took, in its progress toward its realization
here, in minds of much diversity of character and creed ; and of that
"hvely experiment," which it subsequently held forth, that "a most flour-
ishing civil state may stand, and be best maintained, with a full liberty
in religious concernments " — a liberty which implied an emancipation of
Reason from the thraldom of arbitrary authority, and the full freedom of
inquiry in all matters of speculative faith.

To the founders of this State, and particularly to Roger Williams, belong
the fame and the glory of having realized, for the first time, this grand
Idea, in a form of civil government ; but we should honor them at the
expense of our common nature, should we say that they were the first to
maintain that Christ's kingdom was not of this world, and that the State
had no right, to interfere between conscience and God. The idea must,
undoubtedly, have had its historical origin in him who first endured per-
secution for conscience's sake. "Saul! Saul! why persecutest thou me?"
is a voice, implying a denial of right, which comes with a sudden shining
round about of light, not only from Heaven, but has come, and shall ever
come, from the depths of persecuted humanity, through all time ; and, in
proportion to the violence and spread of the persecution, has been, and shall
be, the depth and extent of the cry. It is the protest of that all-present
Reason, which is, at once, the master of the individual and the race, against
the abuse made by the creature, of its own delegated authority. And that
time never was, and never shall be, when humanity could, or can, recog-
nize the right of any human power to punish for the expression of a mere
conscientious belief

By what fraudful craft or cunning, then, was it, that this power to
punish in matters of conscience came to be established throughout all
Christendom, and has been continued down, in some countries, to the
present day? — and how happened it that the odious office of punishing



4 Judge Durfee's

heretics, ami tnforcino: uniformity of opinion, fell, both in Roman Catholic
and Protestant countries, on the civil magistrates? This question is fully
answered by history.

When mi-n had been brought to believe that they had found a divine
and infallible teacher in the Bishop of Rome, it was not difficult to induce
them to think that whatever opinion they might entertain, which he thought
proper to condemn as heretical, was, in truth, a sin, which they were bound
to renounce, on the peril of their salvation ; and that then, on having
renounced it, upon undergoing a voluntary penance, directed by some
ecclesiasticid authority, they might be assured of an absolution, and full
restoration to the bosom of the church. Thus far it was believed that the
spiritual power might proceed. But then, there were frerjuently those who
were much more contident in the truth of their opinions than in the infalli-
bility of the l^ojie, or their priestly advisers ; and such persons, on their
opinions being adjuilged heretical, were, after all suitable admonition, con-
demned as mcorrigible heretics, and excommunicated.

Yet this was not an extirpation of the heresy; and the Roman Church
held that she had a divine right to extirpate heresy ; and yet she also
adopted tlie maxim. Ecclcsia ahhorret a sanguine — the Church abhors
blood. The holy Church then could not take the life of the heretic ; and.
therefore, she contrived to shift off this odious office upon the secular
authority, hy imposing an oath upon the princes of Europe, generally, to
sustain the Catholic faith, and to extirpate heresy out of the land. It'was
thus that it fell to the lot of the kings of Europe, and tht/T subordinates,
to become the executioners of the Church of Rome. And when the
Refonnation was established over a part of Europe, national churches took
the place of the Roman church, and laws were passed to enforce uniform-
ity; and thus, even in Protestant countries, the ungrateful task of punish-
ing non-conformity and heresy fell on the ci\'il magistrate.

It was by such craft that the power to punish for matters of conscience
came to be established, both in Roman Catholic and Protestant countries.
and that in both, the odious office of inflicting the punishment fell on the
secular authorities.

Bui though the subjects of the Roman Church may have tacitly con-
ceded to the Pope his claim to infallibility, and have submitted to an
authority in the civil magistrate thus usmped over conscience ami Reason :
yet it is not hence to be inferred that the inboni consciousness of soul-
hberly — of the title of Reason to he free — became, thereupon, utterlv
extinguished and lost. Indeed, long before the Ref trmation — long before
the time of Luther — there were great numbers in Europe, who had. them-
selves, acquired !«omc knowledge of the Scriptures, and had, consequently,
adopted opinions quite inconsistent with the doctrines ami traditions of the
Church of Rome ; and they appeareil to be opinions in which they had
abundantly more confidence than in the infallibility of the Popi-. Now.
when these people came to be condemned as heretics, and consigned to
the secular authorities, to imdergo the sentence and jnmishment of death,
can any one sui)|K)se tliat the appearance of the civil magistrate deceived
tliem into thf belief that they ha<l imleed committed a crime? ('an any
one doubt that they questioned his right — as they had fpiestioned the
infallibility of the Pope — to come in, with the sentence of death, between
their consciences and their God, for a matter of faith in which their eternal



Historical Discourse. 5

hopes were grounded? Indeed, their deaths were the strongest possible
protest against the legitimacy of the power; since no one can be supposed
to adhere to an opinion, as right, for which the magistrate may rightfully
put him to death. .The actual denial of the right of the civil power to
interfere in matters of conscience, must, therefore, be coeval with the
assumption of the authority.

But men sometimes act on a truth which they feel, though they do not
clearly express it in words ; and now was this denial of the claims of the
secular authority put forth in language, and taught as a doctrine? History
is not silent on this point. By a mere glance at its pages, we may follow
the progressive development of the inborn idea of the rights of conscience
and Reason in the express denial of the legitimacy of the authority usurped
over both, from the earliest dawn, to the broad day, of the Reformation,
Time will not permit me to dwell on this point. I am now hastening to
the political manifestations of this idea, and I can do little more than say,
that its protestations, against the e.vercise of secular jwwer in the concerns
of conscience, may be traced down to their results in the Reformation,
more or less distinctly, in the doctrines of the Waldenses and Albigenses.
These were names designating persons of a great variety of opinions, on
minor points, and by which dissenters from the Roman Church were gen-
erally distinguished, long before the appearance of Luther. The doctrines
of these dissenters, when first noticed, strongly resembled those of the
primitive Christians. I cannot enumerate them ; but, like the first settlers
of this State, they seem to have regarded " Christ as king in his own king-
dom ;" and, by separating the church from the world, and by repudiating
the Roman Church on account of its assumption of secular authority, they
manifestly denied the right of the civil magistrate to interfere in the con-
cerns of conscience. I'hese people were early found in the valleys of
Piedmont, and, at a later period, in the south of France. A crusade was,
however, instituted against them by Innocent III., and they were driven
from their homes, with conflagration and slaughter, into almost every
European kingdom. Rome, thus undesignedly, scattered the seeds of the
Reformation broadcast over Europe ; and with them those principles and
doctrines which expressly separated the Church from the secular power.

The doctrines of the Waldenses had been widely diffused at the dawn
of the Reformation, and when Luther appeared, the number of dissenters
from the Roman Church, who had adopted these, or doctrines similar to
these, were great in every country in Europe ; but particularly in Germany,
Europe was, in fact, thus made ripe for an insurrection in favor of soul-
liberty against soul-oppression, in every form, and particularly against that
despotism which the Church asserted, and which it maintained in the last
resort, by the agency of the secular jxjwer, over the reason and the con-
sciences of its subjects. And, indeed, the Reformation was nothing less
than an effort made by this Reason for its own emancipation.

But to break down its prison-walls was not to build its own house ; to
emancipate itself, was not to secure and establish its own freedom ; and,
therefore, in the very effort which it made for its emancipation, it necessa-
rily kept this end in view — namely, the ultimate establishment of its own
proper asylum, its own free home — so fortified, as to secure it against every
attempt to enslave it. Let me endeavor to give this idea a more philo-
sophical expression. This Reason exists in humanity, only in and through



6 Judge Durfee's

the indi\'idual mind. Now, nothing' could secure and establish its freedom
but the rtaltzatton of the individual r/iind itself — free as its Creator had
made it — m a congenial, svciul mind, standing out, fully developed and ex-
pressed, in currespond( ntly free political institutions. This was the idea ;
this was the then deeply-involved conception, to which the general mind
of Protestant Eurupe gravitated, unconsciously, but of its own law, as to
a common centre. I say unconsciously; but it had its vague and inde-
lenuinate aspirations and hoi)es. It ever had its object dimly and indis-
tinctly before it, though receding at every approach. It was this idea
which, fur generations, shook Eurojie to its centre: it was this idea which,
when the spiritual ilumination of Kome was overthrown, and Protestant
Europe stood forth in renovated institutions, still haunted the minds of
our English ancestry, as a great conception, which had not been, but
might yet be, realized; it was this idea which brought them '-from the
mother-nation in the bishops' days," and finally, " from the New-England
over-zealous colonies," here, to the forest-shaded banks of the Mooshausic,
where they, at last, fully realized it, in the social order and government
of a State.

It may not be inappropriate to trace this idea, through the several
stages of its progress, to its realization here. It will, at least, give us
confidence in tliat which may follow, and will, I flatter myself, show
that we are not dealing with a jjhantom of the imagination, but with a
sober historical reality.

When the several Protestant governments of Europe had thrown off
the spiritual dominion of the Pope, great was the expectation of their
subjects that the individual mind would be no longer held in spiritual
bondage. This expectation, however, was destined to a considerable dis-
appointment. These governments had indeed thrown off the dominion of
the Pope, but they substituted, in the place of it, a dominion of their own.
Each established its own national church — Lutheran. C'alvinistic, or Epis-
copal. The king, or head of the nation, became the head of the established
order; and laws were enacted, or ordinances promulgated, to enforce uni-
formity and punish heretics. It is evident, however, that here had been
a progress toward the realization of the idea which had caused the
Reformation. In Continental Europe, the Lutheran and the Calvinist,
under their respective church and state governments, were in the full
enjoyment of that soul-liberty which would have been denied to them by
the Pope. Each of their minds found its place in a congenial social mind :
their idea of soul-liberty was realized. But how was it with those who
could not conform to the established church? They were obnoxious to
the laws; they were disfranchised, or punished for nonconformity, or
heresy. That soul-liberty, for which they had struggled and sufl'ered so
much, during the triiils of the Keformation, had not been realized ; and
they were, in respect to conscience, out of legal protection, and objects of
persecution. And this was ))arlicularly the case in England, the father-
land of our ancestors. The lieformation had there been commenced, not
by the people — not by a Luther and his associates — but by the govern-
ment itself, and for the interest and the purposes of the government. It
was commenced in the reign of Henry VHI.; and, after a sanguinary
struggle during the reign of Philip and Mary, was at length recognized
aa fully ealablished, in the reign of Elizabeth.



Historical Discourse. 7

This event terminated, for ever, the spiritual dominion of the Pope in
England, and established Episcopacy as an integral part of the monarchy,
-jvith the sovereign at its head. Here, too, was a progress toward the
realization of the great idea, but it was a progress made only for the
benefit of the Episcopahan ; and, indeed, for his benefit only while he con-
tinued to adhere to that particular faith. The moment that reason or
conscience carried him beyond the prescribed limits, he fell under the ban
of Church and State, as a non-conformist or heretic. Nor did he find
himself alone. Many there were, who, from the first establishment of the
Church of England, thought that the Refonnation had not been carried
to a sufficient extent ; and that the soul-liberty, for which they had endured
so much, had not been realized. They were comprehended under the
general name of Non-confonnists, and consisted of those called Brownists,
Puritans, Congregationalists, Independents, and so forth. Neither of these
denominations felt that their idea of rehgious liberty had been realized in
an Episcopal Church and State. On the contrary, they felt that how
much soever of liberty there might be for the Episcopalian, there was but
little for them. A part of those called Puritans, formed themselves
into associations or churches, crossed the Atlantic, and established them-
selves at Plymouth, Salem, and Boston, and became the first settlers of
New-England.

They sought these shores, to establish here, far from English bishops
and their tyranny over reason and conscience, religious liberty for them-
selves and their posterity. This, at first, certainly seems to promise the
final accomplishment of the great object of the Reformation — even the
entire emancipation of the individual mind from spiritual thraldom, and
the establishment of its freedom in the bosom of a congenial community.
But, in fact, it proved to be only another step toward that end. What
they meant by religious freedom, was not the freedom of the individual
mind from the domination of the spiritual order, but merely the freedom of
their particular church ; and just as the English government had thrown
off the tyranny of the Pope, to establish the tyranny of the bishops, they
threw off the tyranny of the bishops, to establish the tyranny of the
brethren. But still, a small community, under the rule of brethren, is
nearer to an individual than a nation under a monarch; and the establish-
ment, here, of these churches or religious associations, even under their
ecclesiastical and civil forms, proved to be a great approximation toward
the realization of the full freedom of the individual mind in congenial social
institutions. True, they established nothing but the liberty of Church and
State corporations, and of their respective members ; but it was easier to
break from the restraints imposed by a petty community, than from those
imposed by the government and people of England ; especially when the
daring adventurer had the wilderness before him. And the form, which
these religious associations took, was particularly exposed to the liability
of provoking disaffection, even among themselves.

Their Church and State governments were essentially the same institu-
tion, under different names. The spiritual power was brought down to
earth, and into all the relations of private and public life. It appeared in
their laws — their judicial proceedings — in the administration of the gov-
ernment, and in all the movements of the State. Nothing of importance
was done without the advice of the minister and ruling elders ; and we



g Judge Durfee's

may well suppose that, under such a form of government, politics and
religion were identical. It was designed to make men religious accordmg
to law; and there could not be two parties in the State, without there
being also two parties in the Church ; and to question the authority of
either, was to provoke the resentment of both. The brethren were, indeed,
free as long as they continued brethren : but Reason was, at that time,
mo\ing on to its emancipation, and it could dilate on nothing which did
not bring it directly or indirectly into conriici with the Church. It, there-
fore, soon hapjiened, and particularly m Massachusetts, that numbers of
the brethren, of diverse minds in matters of faith, lost their place in the
Church, were cast out, and exposed to the penal inflictions of the civil
authorities.

Among the earliest, if not the ver)' earliest, of these, was Roger Williams,
the founder of this State. He had sought New-England (A. D. 1031) in
the expectation that he might here enjoy that religious liberty which was
denied him in the moiher-countrj-. He was a minister of the gospel. He
at first preached in Plymouth, and afterwards became a minister of the
church at Salem. He freely expressed his opinion on various subjects.
He athrmed that the king's patent could not, of itself, give a just title to
the lands of the Indians. He maintained that the civil magistrate had
no right to interfere in matters of conscience, and to punish for heresy or
apostacy. He contended that "the people were the origin of all free
power in government," but that "they were not invested by Christ Jesus
with power to rule in his Church ;" that they could give no such power
to the magistrate, and that to "introduce the civil sword" into this spiritual
kingdom, was "to confound heaven and earth, and lay all upon heaps of
confusion." In effect, he called upon the Church to come out from the
magistracy, and the magistracy to come out from the Church ; and de-
manded that each should act within its appropriate sphere, and by its
appropriate means. It was then, for the first time, that the startling
thought of a complete separation of Church and State was uttered on
these Western shores ; and it was then, also for the first time, that the
individual mind, free in the sovereign attributes of Reason, stood forth
before the Massachusetts authorities, and boldly claimed its emancipation,
in the realization of its own true idea of government.

Buch a mind was manifestly too large for the sphere of a Church and
State combination. It had already broken from its bondage, and now
stood out, independent, individual, and alone. Roger Williams was neces-
sarily banishe(i by the Massachusetts authorities. He was sentenced to
ilepart fmm thfir jurisdiction within six wteks. But he went about, "to
draw others to his opinion," and he proposed "to erect a plantation about
the Narragansett bay," The rumor of this reached the ears of the magis-
tracy; and, to defeat his intent, which had for them a most alarming sig-
nificance, they propo.sed to send him to England, by a ship then lying in
the harbor of IJoston. He oluded their qupst ; plunged into tho forest-
wildenif^ss; and, after spending the winter among its savage, but liospita-
ble, inhabitants, attrmpted to form a plantation at Seekonk ; biit, dofeated
in this, came, at last, into the valley of the Mooshausic, and here, with a
small number of associates, of like aspirations, realized that idea of gov-
ernment, in its first fonn, which had so long allured, but still evaded, the
pursuit of nations and men.



Historical Discourse. 9

We have thus traced this idea of government, from the first indistinct
expressions of itself in the doctrines of the Waldenses, through the strug-
gles of that revolution known as the Protestant Reformation ; we have
next noticed the imperfect realizations of itself, in the Church and State
governments of Europe ; we have then seen it cross the Atlantic, in the
form of small religious associations, to be again reproduced, imperfectly,
in a combination of ecclesiastical and civil institutions ; but we have now
seen it, impersonated in the individual man, breaking from these restraints,
and going forth into the wilderness, there to establish itself in an infant
community, as the last result of centuries of effort.

We start, then, with this important fact, well worthy of being for ever
fixed in every Rhode-Island mind: namely, that it was here that the great
idea, which constituted the very soul of that religious movement which so
long agitated all Europe, Jirst took an organic form in a civil community,
and expressed itself in a social compact.

Let us for a moment attend to the words of that compact ; let us
hearken to this, its first free expression of itself We ought not to expect
it to announce itself in the clear, strong tones of manhood ; for it can
speak, at first, only through an infant organization : it will only make
known its advent into the material world, by lisping its earliest wants ;
but, then, it will lisp them so clearly and distinctly, as to leave nothing to
be misunderstood.

"We, whose names are hereunder, desirous to inhabit the town of Provi-
dence, do promise to subject ourselves, in active and passive obedience, to
all such orders or agreements as shall be made for public good of the body,
in an orderly way, by the major assent of the present inhabitants, masters
of families, incorporated together into a town-fellowship, and such as they
shall admit unto them, only in civil things?'*

Here the great idea resolves itself, manifestly, into two elements — Lib-
erty and Law; the one, necessarily implied; the other, clearly and deter-
minately expressed. Liberty, Soul-Liberty, they take from no earthly
power or being. It is the gift of God, in that Reason which is within
them, as His law, and which human aiuhority can neither rightfully
enlarge nor diminish. In this, its exalted and exalting element, the reason
is left to deal freely, and according to its own method, with the Divine, the
Eternal, the Infinite, the Absolute, and all that pertains thereto, without
let or hinderance. But in the region beneath, in this meum and tuum
world, the proper sphere of the common-sense understanding of mankind —
where man may jostle man, where each may claim to occupy the same
space, to possess the same thing, to do the same act — they each joyfully
accept law at the hands of their fellows, cautiously requiring that it should
be only in these, their civil things.

We have now this idea, with its two elements, as it first manifested
itself in the infant community of Providence ; but it was destined to


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