The Province Charter of 1691 provided that there should be “a liberty of Conscience allowed in the Worshipp of God to all Christians (Except Papists)” who inhabited Massachusetts. Despite these bold if less than all-embracing words, the faith of the founding Puritans constituted the “establishment” of the province. It continued as such beyond the time of independence and well into the 19th century.1
As the discussion in Pierce v. Wright,
, suggests, however, the term “establishment” is here used in a rather special sense. Local autonomy meant that Massachusetts had neither an established religion nor quite an established church.
Nevertheless, there were established churches. Within each town in the Province at least one church or congregation—generally Calvinist in doctrine and congregational in polity—was entitled under the existing laws to receive special favors from the government. Statutes provided financial and other support for the church with which a majority in each “town or place” was affiliated. That majority in almost every case subscribed to doctrines which, however variant, had enough in common to occupy the broad theological center which was Congregationalism. Dissenters to the left and right might worship as they chose, but they were rarely in a position to receive the kind of state sanction and assistance accorded to the Congregational churches. Moreover, despite exemption acts, they had to battle constantly to avoid contributing to support the established order.
The principal dissenting denominations in 18th-century Massachusetts were the Episcopalians, the Quakers, and the Baptists. All three fought establishment actively, but after about 1750, the Baptists were its chief
opponents. Green v. Washburn
is an example of the varied litigation which their struggle produced.
Barely a year after the promulgation of the Charter, the basic principle of establishment was laid down by statute. “Able, learned, orthodox” ministers “of good conversation,” approved by a majority of the church-going voters in a “town or place” were to be supported by taxes levied upon all of the inhabitants. If a town was delinquent in providing itself with such a minister, the Court of General Sessions for the county could “take effectual care to procure and settle a minister qualified as aforesaid, and order the charge thereof and of such minister's maintenance to be levied on the inhabitants of such town.”2
A dissenter was free to support his own church as well, but if he did so he paid twice.
In 1724 the Privy Council ordered the remission of part of the province tax intended to support Congregational ministers in two towns in which a majority of the inhabitants were Quakers. This decision was itself of narrow effect, but the dissenters pressed the attack, perhaps inspired by the Board of Trade's position that the tax in question was contrary to the Charter.3
At length, in 1728, having previously granted
Episcopalians the right to have their taxes paid to their own pastors in certain cases, the General Court passed legislation relieving Quakers and Baptists (or “Anabaptists” as they were called) from taxes “assessed for the support of the minister or ministers of the churches established by the laws of this province.” Eligibility for exemption was first determined on the basis of attested lists of those who attended meeting and professed themselves Baptists or Quakers, which were to be furnished by principal members of the denominations in each town. A re-enactment in 1734 provided that lists of exempt Baptists were to be prepared by the town assessors, but omissions could be supplied on the certificate of “two principal members of that perswasion” that they believed omitted persons “to be conscientiously of their perswasion, and that they do frequently and usually attend their meetings for the worship of God, on the Lord's Day.”4
After the Great Awakening of the 1740's had left an irremediable split within Congregationalism, problems in the administration of these laws increased. The “New Lights,” who had supported the revivalist movement, in many cases formed Separate churches and sought the same tax relief that had been given earlier to the dissenting sects; but the “Old Lights,” and those New Lights who continued to support the established order, resisted, apparently finding outright dissent easier to tolerate than Separatism. The inspiration of the Great Awakening had also produced a division in the Baptist ranks between the old General Baptists with their Arminian beliefs and New Light Baptists, who adhered to the strict Calvinism of the revival. With doctrinal differences few, many Congregational Separates became Baptists, forming for themselves, or joining New Light Baptists in, what came to be called Separate Baptist churches. This development brought forth from the Standing Order and from unconverted Separates alike the charge that the converted ones had had themselves “dipped to wash away their taxes.”5
The criteria for determining who was a Baptist took on a new importance as this sudden growth in what had theretofore been a static and relatively innocuous minority began to threaten both the doctrinal and the financial stability of the established churches.
To meet the situation the General Court tightened the exemption laws, requiring in an Act of 1753 that a Baptist's certificate of faith and attendance was to be given by the minister of his church, as well as by two principal members, all of whom had to be vouched for in turn by three other Baptist churches.6
The latter requirement, which had proved most
obnoxious to the Baptists, was eliminated in 1758 when a statute was enacted to replace all previous exemption acts for Baptists and Quakers, which had by then expired. The new measure carried forward the exemption in terms similar to those of previous acts, but provided that no person was to be “esteemed or accounted an Annabaptist” unless his name appeared on a list given to the assessors over the certificate of the minister and three principal members of his church to the effect that all those on the list were “really belonging thereto, that they verily believe them to be conscientiously of their perswasion, and that they do frequently and usually attend the publick worship in such church on the Lord's day.” The first-quoted clause apparently added actual church membership to the requirements under earlier law.7
Since the assessors were often hostile toward those seeking exemption, these provisions produced much dispute and consequent litigation. A detailed study of this litigation based upon court records has yet to be made and cannot be undertaken here. Secondary sources and the documents in a few cases in which John Adams was involved indicate that the usual suit was one brought by the dissenting taxpayer against the town officials who had either collected the tax from him or had had his goods or body taken by way of distress. These suits seem to have turned principally on the questions whether the plaintiff's eligibility for exemption was made out by his certificate, and whether the certificate itself was executed in proper form. And procedural points, common to all litigation in Massachusetts, were often present to cloud the issue.8
Although larger questions of fundamental rights may have been raised in argument, these cases can hardly be said to have adjudicated any such
issues. The famous controversy concerning the Baptists of the town of Ashfield did seem to resolve more basic questions, but resolution took place on a level higher than that of the courts of the province. The earlier exemption acts had provided that the exemption should not “extend to new towns, granted upon condition of settling an orthodox minister and erecting a house for the public worship of God, till such time as those things are accomplished.”9
This provision was omitted from the 1758 exemption act, but since that statute applied to taxes levied in a “town, district, precinct, or parish,”10
the practice under the former act of denying exemption in unincorporated “plantations” was apparently continued. After the plantation of Huntstown was “erected into a town by the name of Ashfield” in 1765, indeed, the proprietors continued to assess ministerial taxes against all, regardless of religion.11
When the Baptists sought legislative relief, they were met with a special act which only strengthened the proprietors' position, providing that the taxes should be levied against every part of each proprietor's right, “in whose hands soever the same may be,” and that the lands of delinquents might be sold to pay the tax.12
Despite more petitions, the Baptists' lands were sold in 1769 for nonpayment of the tax. The conflict which then arose brought forth a full range of the kind of argument on religious toleration and human rights with which today such controversies are customarily clothed.13
The General Court remained unmoved, but in 1771 the Ashfield Act came before the Privy Council and was disallowed. While the exact grounds of this decision are unknown, it in effect adopted a Board of Trade recommendation based on a broadly worded finding that “This Clause, whereby all persons of whatever sect or persuasion in religion, occupying Lands in this Township are equally and indiscriminately taxed for the support of the Independent Church therein established, is in our opinion equally unusual and unreasonable particularly in the case of the Sect commonly called the Antipedobaptists.”14
Perhaps as important to the Baptist churches as the right of their membership to freedom from ministerial taxes was the right of their ministers to the privileges and immunities of the established clergy. An act of 1760 provided that no assessments could be levied for the support of a minister who did not have either a suitable formal education, or the testimony of a majority of the clergy in his county that his learning was sufficient.15
Baptist ministers apparently both lacked the requisite learning and experienced great difficulty in obtaining the necessary support among
their Congregational counterparts. As a result, in one well-known case, even though the majority in the town of South Brimfield were Baptists, they were not allowed to apply their taxes to the support of a minister of their own persuasion.16
A further problem was the status of the ministers themselves as taxpayers. The annual acts which authorized the towns to assess and levy province, county, and town taxes exempted a long list of persons, including “settled ministers.” In 1762, early in the Ashfield controversy, the town assessors, themselves Baptists, had applied this exemption to their minister, Ebenezer Smith. According to a later report by Smith and one of the assessors, a taxpayer complained to the Hampshire County Court of General Sessions that he had been “overrated.” The assessors were summoned and on the trial in May 1762, the court “would not suffer [them] to bring any Proof of the said Ministers Settlement neither by Certificate nor by living Evidence and said that if they should prove his Ordination yet he should not be free paying Taxes. And in the Conclusion cast 4 pounds lawful Money Charges on the two Assessors,” denying them an appeal to the Superior Court on the grounds that no appeal lay in such a case.17
These problems of ministerial status were at least partially resolved by Green v. Washburn.
Nathaniel Green, pastor of what was known as the Second Baptist Church in Leicester, had been ordained a minister in October 1763, at which time he took charge of his congregation, which had gathered only the year before. Green's church first met in Spencer, but soon moved to the western part of Leicester. Perhaps because of its pastor's experiences, to be related, the church joined the newly formed Warren Association in 1768 and thus became part of the organized Separate Baptist movement for the attainment of religious liberty.18
In December 1767 when Seth Washburn and others, the assessors of Leicester, had levied the province, county, and town taxes upon Green, he had refused to pay. Accordingly, in February 1769, his body was taken in distress by the constable, and he was held in custody for several hours until he paid the tax. At the May 1769 Worcester Inferior Court, with John Worthington as his attorney, Green brought suit against Washburn and the other assessors in an action of the case, alleging that, knowing of his status as a settled minister, they had illegally assessed him, and had ultimately procured his arrest. Adams, for the assessors, entered a plea of not guilty, and the case went to trial.19
Adams' minutes of the trial (printed below) suggest that he relied largely on the language of Province statutes dealing with the ministry to define the term “settled minister” in the tax act. The earliest statutes could be read to mean that only those “able, learned and orthodox” ministers who had been approved by a majority of the voters in a town and were to be supported by all of the town's taxpayers were “settled.” The act of 1760, already referred to, seemed to add the further requirement of education, or at least ministerial approval. In contrast, the only Act which dealt with the qualifications of a Baptist minister required that for him to certify members of his church to the tax assessors he need have only certificates attesting to his faith from three other Baptist churches.20
James Putnam, who joined Adams, elaborated upon this theme in a brief but notable address which seemed to sum up all the contempt of the Harvard-bred establishment for the rude and argumentative religion of the Baptists.
Worthington, citing Locke, argued for a broader construction of the tax act, urging that it covered any man chosen by his flock as a minister. Witnesses testified as to Green's ordination and the size and continuing existence of his church. Despite other testimony apparently intended to show that, even among Baptists, Green's was merely a splinter group not entitled to recognition as a church, the jury brought in a verdict for the plaintiff of £2 and costs.21
On appeal to the Superior Court in September 1769, with Adams no longer involved in the case, Green won again, although his recovery was reduced to£1 13s. 6 1/2d., the amount of the tax, and costs.22
If no great constitutional pronouncement came out of this case, the principle which it announced was nevertheless considered an important one. In his Church History of New England,
Isaac Backus, a leading figure in the Warren Association and a participant in many such battles, capped his account of the storms of the 1760's by reporting that “one thing that gave check to oppression was a determination of authority, that the ministers of the Baptist Churches were lawful ministers, so as to have a right to marry people, and to be exempted from civil taxes.” This “determination” took place in two Superior Court decisions, one of which was Green v. Washburn.