either by public or private munificence.

But always understanding that these schools shall be independent of the university and of each other. Such an arrangement would complete the circle of the useful sciences embraced by this institution, and would fill the chasm now existing, on principles which would leave inviolate the constitutional freedom of religion, the most inalienable and sacred of all human rights" (id., pp. 957-958).

Jefferson's record as President of the United States further confirms the fact that his opposition to the establishment of a particular religion did not extend to laws affecting religion in general.

Like Madison, Jefferson signed bills authorizing appropriations for the payment of Chaplains in both Houses of Congress and in the Armed Forces. He also signed bills appropriating funds for the promotion of religion and religious education among the Indians. These latter appropriations resulted from a treaty concluded with the Kaskaskia Indians and sent to the Senate on October 31, 1803, by President Jefferson. It contained the following passage:

"And whereas the greater part of the said tribe have been baptized and received into the Catholic Church, to which they are much attached, the United States will give, annually, for 7 years, $100 toward the support of a priest of that religion, who will engage to perform for said tribe the duties of his office, and also to instruct as many of their children as possible, in the rudiments of literature. And the United States will further give the sum of $300, to assist the said tribe in the erection of a church." ("American State Papers, Class II," vol. LV, p. 687).

Clearly, Thomas Jefferson did not mean that the "wall of separation" was to be so insurmountable as to preclude any church-state relationship whatever. In January 1799 he wrote to Elbridge Gerry:

"I am for freedom of religion, and against all maneuvers to bring about a legal ascendency of one sect over another" (Padover, op. cit., p. 263).

Jefferson's position is well summarized in "Religion and Education Under the Constitution," by James M. O'Neill who states:

“At any rate, we know conclusively, if we know Jefferson, that he could not possibly have been thinking of a wall so high, so impregnable, so absolute, so completely without gates, or stiles, or friendly openings, as forever to prohibit any intercourse, neighborly help, or cooperation of any kind between government and religion" (p. 83).

D. NORTHWEST ORDINANCE

The Northwest Ordinance was passed by the Continental Congress in 1787 and affirmed by the First Congress on August 7, 1789. It provided for the government of the territory bounded by the Mississippi and Ohio Rivers and the Great Lakes.

The Northwest Territory was under Federal jurisdiction until its components became States. Accordingly, the relationship there between church and state is significant in interpreting what the framers of the first amendment meant by laws "respecting an establishment of religion."

Article III of the Ordinance stated in part:

"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

The church-state relationship in Ohio was a particularly close one. In an article written for the Mississippi Valley Historical Association, Margaret J. Mitchell stated:

"We usually say the church and school go hand in hand but in the case of Ohio one would rather say the church was the power behind the earlier educational enterprises. From the very inception of the plan to colonize Ohio, Manasseh Cutler-Congregationist minister and chief officer of the Ohio company-had planned to found a great institution of learning in which morality and religion should be a part of the curriculum since, as he puts it in his sermon, "that was the only way to make citizens conform to law."

"In 1788 the Ohio company bargained for two townships for a college and in 1797 an academy was erected at Marietta. *** In 1795, the Connecticut assembly authorized the sale of the rest of the reserve, providing that the money arising from the sale thereof should constitute a perpetual fund, the interest on which was to be appropriated to the use and benefit of the several ecclesiastical societies, churches, or congregations of all denominations in the territory, to be applied to the support of their ministers and schools" (Religion in Early

Ohio," Margaret J. Mitchell, Misssisippi Valley Historical Association Proceedings (1915-18), pp. 79–80).

Rev. Richard J. Gabel, A.M., S.T.D., noted in his book, "Public Funds for Church and Private Schools":

"There was no exclusion of religious schools or religious education in this distribution [of funds], since the State in general and in the persons of its early executives seems to have considered the intimate union of religion and education as expressed in the Northwest Ordinance and in the State constitution as a binding injunction to encourage religious education" (pp. 257, 258).

In State of Ohio, etc. v. The Trustees of Sec. 29, etc., 11 Ohio 24 (1841), the court was presented with the issue of determining whether a religious society known as the Roman Catholic Society of Delhi Township was to be entitled to a proportionate share of the fund for support of religion. Rejecting the petition because the society had not met certain statutory qualifications, the court noted that:

"The law now in force *** is found in the act of March 14, 1832, 'to incorporate the original surveyed townships.' In the 13th section of this act it is provided 'that each and every denomination of religious societies, after giving themselves a name, shall appoint an agent, who shall produce to the trustees a certificate, containing a list of their names, and numbers, specifying that they are citizens of said township; and the agent shall pay over an equal dividend of the rents, within 3 months after they shall have been received, to be appropriated to the support of religion, at the discretion of each society; provided that all members, above the age of 15 years, shall be entitled to have their names enrolled by any society'" (pp. 26-27).

The Ohio State auditor's report of 1939 discussed the close relationship of church and state in Ohio at page 31:

"Originally, the care of these [ministerial] lands was placed by Congress in the hands of the State legislature and locally, three men were elected to have charge of the lands with the responsibility of taking care of them. They met once a year, and after paying all claims, including the services of the officers, the remainder was distributed pro rata, to the different religious societies that filed with the trustees a sworn statement of the number of members, 15 years of age or older, each living in the original surveyed township. No distinction was made as to different religious organizations and each received a share proportionate to its number of members.

"The duty of administering these lands now falls upon the auditor of State who in his capacity as supervisor of school and ministerial lands has immediate charge of making these lands produce their utmost, distributing the funds and keeping the records and collecting all rents" (Ohio, auditor of State, "A Short History [of] Ohio Land Grants," Columbus, Ohio, 1939).

So here we find in the State of Ohio-which came from the Northwest Territory-as late as 1939-and I have no evidence which would indicate that the practice has been terminated-the auditor of the State distributing to each religious denomination its pro rata share of the annual net income from ministerial land.

The relationship of church and state in the Northwest Territory illustrates the fact that the establishment clause in the first amendment was intended to prohibit the establishment of a particular church. In the New York Prayer case the Supreme Court distorted that meaning.

E. CHAPLAINS

The application of the establishment clause to religion in the general sense was discussed at some length in a House Judiciary Committee report of 1854. This report rejected the petitions of citizens of several States that "the office of chaplain in the Army, Navy, and at West Point, at Indian stations, and in both Houses of Congress, be abolished" (U.S. House Reports, vol. 2, No. 124, 33d Cong., 1st sess., 1853-54).

Mr. James Meacham, of Vermont, reviewing the reasons for the committee's decision to reject the petition, wrote as follows:

"Having made that decision, it is due that the reason should be given. Two clauses of the constitution are relied on by the memorialists to show that their prayer should be granted. One of these is in the sixth article, that 'no religious test shall ever be required as a qualification to any office of public trust under

the United States.' If the whole section were quoted, we apprehend that no one could suppose it intended to apply to the appointment of chaplains.

*

*

*

**

*

"Another article supposed to be violated is article 1 of amendments:

66

'Congress shall make no law respecting an establishment of religion.' Does your 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 nonconformist. There never was an established religion without all these" (p. 1).

With regard to the history of Chaplains in Congress, Representative Meacham continued:

"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. Dushe, 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. Dushe 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; the floods of tears, he says, ran down the cheeks of 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' " (p. 2).

This report discussed the purchase of Bibles by the Continental Congress, as follows:

"I do not deem it out of place to notice one act, of many, to show that 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 30,000 Bibles, and finding that they would be compelled to send abroad for type and paper, with an advance of £10,272 10s., Congress voted to instruct the Committee on Commerce to import 20,000 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; 1,200 soldiers were stretched in death on that battlefield; 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 20,000 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" (p. 3).

The House Judiciary Committee report went on to discuss the prayer of Benjamin Franklin in the Federal Convention of 1787. In this prayer, Franklin appealed to the "Father of Lights" to illuminate the understandings "of this assembly, groping, as it were, in the dark to find political truth." The report

continued by reviewing the action taken by the First Congress in providing for Chaplains:

"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 on 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 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 so inconsistent as to appoint their chaplain for their own deliberative assembly in the State of Virginia, and then recommend that this should be denied to the deliberative bodies of the Nation" (pp. 4, 5).

Summarizing the Judiciary Committee's position with regard to the constitutionality of chaplains, Representative Meacham concluded:

"While your committee believes that neither Congress nor the Army or Navy should be deprived of the service of chaplains, they freely concede that the ecclesiastical and civil powers have been, and should continue to be, entirely divorced from each other. But we beg leave to rescue ourselves from the imputation of asserting that religion is not needed to the safety of civil society. 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" (pp. 8, 9).

F. FOURTEENTH AMENDMENT

The first amendment was proposed and ratified as a prohibition upon the Federal Government, not upon the States (Barron v. Baltimore, 7 Peters 243 (1833), Permoli v. Municipality of New Orleans, 3 Howard 389 (1845)).

It would appear, therefore, that even if the New York regents' prayer did constitute "an establishment of religion," the State of New York would, nevertheless, be constitutionally justified in its action. Since the Supreme Court's decision in Cantwell v. Connecticut, 310 U.S. 296 (1940), however, the due process clause of the 14th amendment has been interpreted as extending to the States the provisions of the 1st amendment dealing with religion, including both the establishment clause and the freedom of worship clause.

This holding of the Court misinterprets the intent of those legislators who framed and who ratified the 14th amendment. Since the Supreme Court's misinterpretation of the establishment clause has somewhat paralleled its misapplication of the due process clause, it seems appropriate to review briefly the relationship of church and state during and subsequent to the passage of the 14th amendment.

To begin with, the 14th amendment was intended by the Reconstruction Congress to extend to former slaves existing State guarantees of basic rights which in certain cases were being extended to whites only. It was not intended, either by the Senators and Congressmen who proposed it or by the State legislators who ratified it, to superimpose on the constitutions of States, both Northern and Southern, the particular guarantees secured to individuals in the Bill of Rights against arbitrary Federal action. Charles Fairman, professor of law emeritus of Harvard, has made a comprehensive study of this very point. "Does the 14th Amendment Incorporate the Bill of Rights? The Original Understanding," Fairman, C., 2 Stanford Law Review 5 (1949) cited favorably in Bartkus v. Illinois, 359 U.S. 121 (1959).

To argue, as Mr. Justice Black does, that the due process clause of this amendment was intended to apply to the States every guarantee of the Bill of Rights is to rewrite history. Mr. Justice Black might ponder the retort in 1871 of then Representative James A. Garfield, of Ohio, to Representative John A. Bingham, also of Ohio. Bingham, the author of the 14th amendment, was arguing 5 years after the amendment had been passed by Congress that it applied the first eight amendments to the States. Garfield denied this; he replied:

"My colleague can make but he cannot unmake history" (Congressional Globe, 42d Cong., 1st sess. (1871), app. 151).

As in the case of Congress, debates by legislators in the ratifying States were free of any implication that the 14th amendment was to apply the establishment clause to the States. I have already reviewed provisions in the Ohio constitution and statutes authorizing the support of religion out of public funds.

New Hampshire went even further. The New Hampshire constitution required that the Governor, councilors, senators, and members of its house of representatives must be "of the Protestant religion." This provision was not eliminated until 1877. In addition, New Hampshire townships were authorized to establish churches where "public Protestant teachers of piety, religion, and morality" might preach.

In one of the leading New Hampshire cases of the 19th century, Hale v. Everett, 53 N.H. 9 (1868), these constitutional provisions were held to prohibit the use of such a church by an advanced Unitarian who felt he could not call himself a Christian. The majority opinion pointed out that the first amendment did not apply to the States. It cited Judge Story to the effect that the first amendment applied only to the Federal Government and that the State governments were free to enact legislation on religious matters.

In 1874, the Supreme Court of Michigan in Weimer v. Bunbury, 30 Mich. 200, heard arguments that a Michigan statute violated the fourth and fifth amendments to the U.S. Constitution. Judge Cooley took the position that there was nothing in this objection :

"It is settled beyond controversy, and without dissent, that these amendments are limitations upon Federal, and not upon State power" (citing Barron v. Baltimore, ibid.).

It is interesting to note that Judge Cooley took the same position in his great work on "Constitutional Limitations," which first appeared in 1868. This same position is maintained in the eighth edition of "Cooley's Constitutional Limitations" issued in 1927, which continued to quote Judge Story.

The history of the Blaine amendment of 1875 further substantiated the fact that the 14th amendment was not intended to extend to the States those provisions of the 1st amendment regarding religion.

James G. Blaine, who opposed Grover Cleveland in the presidential campaign of 1884, was a Member of the House of Representatives in 1875. On December 14 of that year, Blaine introduced a constitutional amendment which would have extended to the States existing restrictions upon the Federal Government regarding the establishment of religion and the free exercise of religion.

Both the Senate and the House versions of the amendment provided in part: "No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof" (Congressional Record, vol. 4, pt. 6, pp. 5189, 5453).

Although the Blaine amendment passed the House, it failed to receive the two-thirds majority in the Senate. The significance of Blaine's proposal lay in the fact that if the 14th amendment had already applied to the States the religious provisions of the 1st amendment, the Blaine amendment would have been a mere duplication.

The following colloquy between Senator Francis Kernan, of New York, and Senator Oliver Morton, of Indiana, illustrated by the absence of any reference to the 14th amendment what a limited application these legislators considered it to have. In this respect they reflected the general sentiment of Congress. Senator Kernan discussed the Blaine proposal as follows:

"I have said that, in my judgment, the proposed amendment would be a very wide departure from correct principles. As to the first clause I have no comment to make; this declares that 'no State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof and no religious test shall ever be required as a qualification to any office or public trust under any State.'