Dissent and Disestablishment: The Church-State Settlement in the Early American Republic

Brigham Young University Law Review, Feb 6/Feb 7, 2004 by Esbeck, Carl H

The Reformation in England was quite different from that on the European continent.50 It was initially driven entirely by politics, with theology, brought in from the continent, later talcing hold as events presented opportunities. The English Reformation commands special attention because of its direct influence on the American colonies, which were destined to become the first thirteen states of a new republic. Moreover, the Spanish colonies in Florida and the American Southwest, as well as the French colonies in the New World south of Canada, would ultimately be subsumed into the American church-state pattern, complete with governmentsupported Catholic missions.51

The English Reformation was precipitated by Henry VIH's desire for a male heir, which led to his taking a series of wives, eventually totaling six in number. When the formal schism came with the Act of Supremacy in 1534, Roman Catholicism had been in Britain for nearly 900 years.52 Thus, long before Henry's frustration at being unable to annul his first marriage to Catherine of Aragon and marry Anne Boleyn, the English crown and Roman Church had already struggled on several occasions.

The church in Britain began poor, but did not remain so. The church gained control over vast tracts of land, often held by monasteries, a significant source of wealth in the hands of neither the nobles nor the crown. These lands were normally free of taxation, but kings and nobles nonetheless sought to extract revenue. One tactic of the crown was to attempt to influence who was appointed to bishoprics and other high church offices. If ecclesiastics controlled great wealth and power within the kingdom, then it was natural for the king to seek influence, if not outright control, over these appointments. However, the papacy also claimed the power to exact revenue from the English clergy and control ecclesiastical appointments. The church often resisted a Icing's suggested appointments, fearing corruption should individuals be attracted to her offices out of worldly ambition or be otherwise unsuitable for clerical service. The papacy could defend itself by controlling the sacraments and threatening excommunication; these defenses proved effective in a time when being anathema (outside the church) was believed to have eternal consequences. As the feudal system receded and nation-states began to emerge, kings sought to consolidate their rule by encouraging feelings of nationalism. Now, not only was money flowing into the distant papal treasury, but the centralized authority of the Roman Church caused some leaders to fear the divided loyalty of subjects with their allegiance to a "foreign prince."53

a-. Thomas à- Becket. One early clash between church and crown, occurring during the reign of Henry II (1154-1189), forged a hero of near mythic proportions out of an English cleric.54 The king resented loss of the royal court's jurisdiction over those clergy charged with the commission of a crime. Known as "benefit of clergy," those under holy orders, when accused of a crime, were within the jurisdiction of the ecclesiastical courts with right of appeal to the pope.55 When a vacancy occurred in the archbishopric of Canterbury, Henry urged the selection of his friend and chancellor, Thomas à Becket. Named to the office in 1162, Becket promptly resigned from Henry's court and became an uncompromising defender of the church's prerogatives.