Some of The First Official Meanings Assigned to The Establishment Clause

While history has given President Thomas Jefferson the primary credit for defining the Establishment clause with the policy statement he made in his reply to the Danbury Baptist Association in 1803, at least two of the three reasons given by President Madison in his vetoes of these bills apply more directly to situations that confront America in the second half of the 20th century.

In what follows, you will read the historical record as it exists pertaining to the two bills Madison returned to Congress. The third bill was a pocket veto. You will also read the historical record regarding the only debate recorded on this matter. Interestingly, some of the arguments advanced by Representative Wheaton, in favor of overriding the veto, are some of the very arguments advanced today by some non-preferentialists and accommodationists. Mr. Wheaton's arguments did not carry the day, and two days after the debate, the House failed to acquire the required 2/3 majority to override the President's veto.

February 21, 1811
 

A message was received from the President of the United States, by Mr. Edward Coles, his secretary, flown by command of the President, returned to the House the bill passed by the two Houses entitled "An act incorporating the Protestant Episcopal Church in the town of Alexandria in the District of Columbia," and presented to the President: for his appropriation and signature, on Thursday the fourteenth instant, to which bill the President having made objections, the same were also delivered in by the said secretary, who then withdrew.
 

The objections were read, and ordered to be entered at large on the Journal, as follows:
 

To the House of Representatives of the United States:
 

Having examined and considered the bill entitled "An act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia," I now return the bill to the House of Representatives, in which it originated, with the following objections:
 

Because the bill exceeds the rightful authority to which governments are limited, by the essential distinction between civil and religious functions, and violates, in particular, the article of the Constitution of the United States, which declares, that " Congress shall make no law respecting a religious establishment." The bill affects into, and establishes by law, sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the Minister of the same; so that no change could be made therein by the particular society, or by the general church of which it is a member, and whose support it recognizes. This particular church therefore, would be so far be a religious establishment by law; a legal force and sanction being given to certain articles in its Constitution and administrations. Nor can it be considered, that the articles thus established are to be taken as descriptive criteria only of the corporate identity of the society, inasmuch as this identity must depend on other characteristics: as the regulations established are generally unessential, and alterable according to the principles and canons by which churches of that denomination govern themselves; and as the injunction is a prohibitions contained in the regulations, would be enforced by the penal consequences applicable to all violation of them according to local law:
 

Because the bill vests and said incorporated church an also authority to provide for the support of the poor, and the education of poor children of the same; an authority which being altogether superfluous, if the provision is to be the result of pious charity, would be a precedent for giving to religious societies, as such, a legal agency in carrying into effect a public and civil duty.
 

JAMES MADISON
 

Feb. 21, 1811
 

Mr. BASSETT suggested the reference of the message to select committee
 

The Speaker conceived that the article on the Constitution on this subject of required the the House should proceed to a reconsideration of the bill.
 

On motion of Mr. PITKIN, the House proceeded to reconsider the bill.
 

The message was again read, as also was following clauses of the Constitution: "every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes law, be presented to the President of the United States; if he approve, he shall sign it; but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections to the other House, by which shall likewise be reconsidered, and, if approved by two-thirds of that House, it shall become, a law.
 

Mr. RANDOLPH asked whether a motion for the indefinite postponement would, in the opinion of the Speaker, lie in this case?
 

The speaker believed not.
 

The following article of the Constitution was then read by request
 

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or bridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the government for redress the grievances."
 

Mr. Bassett said, though the Constitution had prescribed a reconsideration of the bill when returned, the mode of reconsideration was not prescribed; and it might well be by reference to a select Committee as in any other mode. The bill might, perhaps, be amended. Of their power to amend in its present state, however, he was not certain.
 

Mr. SMILIE conceived the Constitution peremptorily to require an immediate decision.
 

Mr. PITKIN said, that this question was new to him. He had no idea that the Constitution precluded Congress from passing laws to incorporate religious societies for the purpose of enabling them to hold property, &c. He had always held the Constitution to intend to prevent the establishment of a National Church, such as the Church of England--a refusal to subscribe to the tenets of which was to exclude a citizen from office, &c. Desiring time for reflection, he therefore wished the bill to lie on the table for further consideration.
 

Mr. PICKMAN said, it appeared to him that the bill was not an important one, a refusal to pass which would be productive of any serious injury; and yet, that a full discussion of the principles it would involve would occupy the whole of the remaining session. If two-thirds of the House were to refuse to proceed to a reconsideration, the bill would be ipso facto at an end; and this he thought would be the best course, &c, considering all the circumstances.
 

Mr. WHEATON said he differed widely from his colleague (Mr. PICKMAN) as to the importance of the bill now under consideration. He did not imagine that they were to assume the objections of the President to be valid, and of course to dismiss the bill. They had a duty to perform as well as the President. He had performed his duty in the case presented for consideration. And would gentlemen assume it as a correct position because the bill was objected to by the President that the House ought not to act understandingly? This was not the correct principle. In his view the objections made by the President to this bill were altogether futile. Mr. W. said he did not consider the bill any infringement of the Constitution. If it was, both branches of the Legislature, since the commencement of the government, had been guilty of such infringement. It could not be said, indeed, that they had been guilty of doing much about religion; but they had at every session appointed Chaplains, to be of different denominations, to interchange weekly between the Houses. Now, if a bill for regulating the funds of a religious society could be an infringement of the Constitution, the two Houses had so far infringed it by electing, paying or contracting with their Chaplains. For so far it established two different denominations of religion. Mr. W. deemed this question of very great consequence. Were the people of this District never to have any religion? Was it to be entirely excluded from these ten miles square? He should be afraid to come it that were to be the case. The want of time was no sufficient reason against giving this subject mature consideration. What was done ought to be well done. For these reasons he was in favor of the bill lying on the table.
 

Mr. MACON quoted a precedent of the proceedings in the case similar to this in General Washington's Administration; in which the House, after a consideration of the Message, had come to the following resolution:
 

"Resolved, That to-morrow be assigned for the reconsideration of said bill, according to the Constitution of the United States."
 

He moved that the same resolution be now adopted.
 

Messrs. LYON and BOYD were in favor of an immediate decision.
 

Mr. SOUTHARD wished a postponement to give him time to examine the bill. He was convinced that a bill might be passed for regulating the temporal concerns of a religious society, which would not violate the Constitution, but did not say, till he could examine whether this was such a bill or not.
 

Mr. QUINCY quoted cases of law which had passed the signature of the late President, which, in every material respect, appeared to him to contain the same provisions as this bill.
 

The motion of Mr. MACON was adopted with out a division.

Source of Information:

The Debates and Proceedings of the Congress of the United States with an Appendix containing Important State papers and The Public Documents, and all The Laws of a Public Nature; with a Copious Index. Eleventh Congress - Third Session. Comprising the Period from December 3, 1810 to March 3, 1811, Inclusive. Compiled from Authentic Materials. Washington: Printed and published by Gales and Seaton, (1853) pp 982 - 985.

 

February 23, 1811
 

The House resumed the reconsideration of the bill passed by the two houses, entitled "An act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia," which was presented for approbation on Thursday, the 14th instant, and returned by the President on the 21st instant, with objections.
 

The said bill was read at the Clerk's table, and is as follows:
 

An act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia.
 

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the Minister and Vestry of the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia, which was, on the first day of January, one thousand eight hundred and nine, associated as a religious society, be , and their successors are hereby, declared and made a body corporate and politic, by the name, style, and title of the Minister and Vestry of the Protestant Episcopal Church in the town of Alexandria; and by name, style, and title, aforesaid, they, and their successors, shall forever lawfully have, hold, use, and enjoy, all and every tract and tracts of land already belonging to the said church, which is now, or which may hereafter be, acquired by donation or purchase; the Church already built, with the burying ground belonging to the same, with their hereditaments and appurtenances; and all books and other property heretofore, and that may hereafter be, appropriated to the use of the said church, to the sole and proper use and benefit of the said church, agreeable to the true intent and meaning for which any of the said property was or may be purchased or given; and by the name, style, and title., aforesaid, they shall be capable in law to hold, maintain, and recover, all their estates, rights, and property, belonging thereto, and to sue and be sued, plead and be impleaded, answered and be answered, defend, and be defended, in all suits, controversies, causes, actions, matters, and things whether they be actions of debt, assumpsit, ejectment, trespass, or bill in chancery, in any court or courts of law or equity, and before any judge or justices whatsoever, and shall have seal and perpetual succession; and the service of the process upon the Churchwardens shall be a sufficient service upon the body corporate.
 

Sec. 2. And be it further enacted, That, in all proceedings of the aforesaid Minister and Vestry, all matters shall be decided by a majority of the votes; and the said ministers shall in no case have a negative on the proceedings of the said Corporation, except when his vote shall be with, or make a majority of, the the votes, present, at any meeting of the said Corporation
 

Sec. 3. And be it further enacted, That, the said Minister and Vestry, by the name and style aforesaid, shall have good right, full power, and lawful authority to have, take, receive, acquire, purchase, hold, use, and enjoy, all lands, tenements, hereditaments, and all goods and chattels; and to demise, alien, improve, and lease, not only the lands which they now have, but which they may hereafter acquire; and to use and improve such goods and chattels, to use and benefit of the said Church, so that the annual increase their thereof shall not exceed six thousand dollars, any law, usage, or custom, to the contrary notwithstanding. And it shall and may be lawful for the said minister and vestry of the said church, to sell any of the said property, real or personal, which at this time lawfully belongs to the said church, or the interest which the said church may have in any property, real or personal, or which may hereafter belong to it, for the purpose of applying the proceeds thereof to the purpose of erecting a new church, or repairing the present one, for the use of the said congregation or building, or repairing dwelling or other houses, for the use of their minister, or school houses, within the said town of Alexandria, or in any other way or manner as they shall, from time to time, think necessary for the benefit of said church: Provided, That nothing in this act shall be construed so as to affect the rights or claim of any person or persons, country or parish, in or to any property now in possession of the said church, or claimed by it.
 

Sec. 4. And be it further enacted, That the minister, or in case of his absence, or of a vacancy, the churchwardens, shall call a meeting of the vestry as often as it shall be deemed necessary; seven of whom shall be of sufficient number to constitute a meeting for the dispatch of business, and shall have power (except for the election of a minister, or of demising, alienating, or leasing of land, in which cases, a concurrence of a majority of the whole number elected shall be necessary,) to make such rules and orders, for the managing all the temporal affairs of the said church, as they, or a majority of them so met, shall agree upon, and shall think most conductive to the interest and property of the said church; and shall have the disposition and ordering of all payments of the moneys belonging to the said church, and also of the appointment of a clerk, treasurer, collector, and sexton, whenever they judge it necessary, and the said clerk, treasurer, collector, and sexton, at their pleasure to remove, and appoint others in their stead; all with orders, rules, and appointments, together with the accounts of the said church, the said vestry shall cause the fairly entered and preserved in well bound books, to be provided for that purpose; and shall deliver the said books, with the papers and documents belonging to the said church, over to their successors in office.
 

Sec. 5. And be it further enacted, That, whenever a minister and vestrymen are wanting, to form a body corporate and politic, agreeable to the direction of this act, it shall be lawful for any two reputable members of the church to call together, at the said church, by notice duly published in one of the newspapers published in the town of Alexandria, the members of the said church, and there elect, by a majority of votes, twelve able and discreet men, men, members of the said church, who shall be a vestry to all intents and purposes, and who, with their minister, or during a vacancy without a minister, shall be a body corporate and politic, by the same name, and shall enjoy all the rights, powers, privileges, and immunities, which are given by this act to the said church.
 

Sec. 6. And be it further enacted, That, at all elections of a vestry for the said church, no person shall be allowed to vote who is not a member of, and who has not actually contributed to the support of the said church, for twelve months next preceding the said election. There shall be elections of vestrymen every third year, forever, the next election to be held on Easter Monday next, and all succeeding elections on the same day, in every third year thereafter, which elections shall be held and conducted in the following manner: The members of the said church shall assemble at the said church, or there should be no church-house, at such other place as the vestry, for the time being, shall appoint be due notice, on Easter Monday, in every third year, and then there elect twelve able and discreet men, members of the said church, as vestrymen, who shall continue in office for three years, and until their successors be elected, in the manner aforesaid; two of the vestrymen so chosen, shall annually, be a majority of the vestry, be appointed churchwardens, who or either of them, and their successors, shall preside at all elections of a vestry, shall take care that such elections are conducted in a fair and orderly manner, and shall, be judges of the qualifications of the electors.
 

Sec. 7. And be it further enacted, That, whenever a vacancy or vacancies in the vestry shall happen, either by death, resignation, quitting the church, or removal, the remaining vestrymen, or a quorum of them, shall choose such person or persons as they may think fit and proper, to supply the office of such vestryman or vestrymen, who, in complying with the rules and forms of the said church, shall continue in office until the next general election, except he or they remove, resign, or quit the church as aforesaid.
 

Sec. 8. And be it further enacted, That it shall and may be lawful for the said vestry to make such provisions for the support of the poor of the said church, as shall by them be thought proper; and to provide also, in such a manner as to them shall appear proper, for the education of the children of the said church.
 

Sec. 9. And be it further enacted, That the vestry of the said church, two-thirds concurring, shall have fill power and authority to remove from the said church any minister guilty of unworthy behaviour, or of neglecting the duties of his office; and, upon such removal, the said vestry shall have authority to elect a successor.
 

Sec. 10. And be it further enacted, That it shall and may be lawful for the said minister and vestry to make such rules and regulations. For the good management of the temporal affairs of the said church, as may be deemed by them most expedient, and for the government of the said vestry, and the same abrogate or alter as often as they see fit: Provided always, That such rules and regulations are not inconsistent with, and against any provision of this act, the laws of Congress, and the Constitution of the United States, or any rule or canon of the Protestant Episcopal Church of the State of Virginia.
 

Sec. 11. And be it further enacted, That this act shall commence, and be in force, from and after the passing thereof.
 

JOSEPH B. VARNUM
Speaker of the House of Representatives
GEORGE CLINTON
Vice President of the United States,
and President of the Senate

 

The president's objections were also again read: and after debate, the question "That the House on reconsideration, do agree to pass the bill." was taken in the mode prescribed by the Constitution of the united States and determined in the negative--yeas 29, nays 71 as follows:
 

Yeas - Joseph Allen, Abijah Bigelow, William Chamberlin, Epaphroditus Champion, John Davenport, Jr., William Ely, James Emot, William Hale, William Helms, Ebenezer Huntington, Richard Jackson, Jr., Herman Knickerbacker, Joseph Lewis, jr., Edward St. Loe Livermore, Vincent Matthews, Archibald McBryde, Jonathan O. Mosely, Joseph Pearson, Timothy Pitkin jr., Elisha R. Potter, Dennis Smelt, James Stepheason, Lewis B. Sturges, Samuel Taggart, Benjamin Talimadge, John Thompson, Nicholas Van Dyke, Ezekiel Whitman and Robert Witherspoon.
 

Nays - Willis Alston, jr., Ezekiel Bacon, William T. Barry, William W. Bibb, Adam Boyd, James Breckenridge, Robert Brown, William A. Burwell, William Butler, Matthew Clay, James Cochran, William Crawford, Richard Cutis, John Dawson, Joseph Desha, John W. Eppes, William Findley, Meshack Franklin, Barzillar Gannett, Gideon Gardner, David S. Garland, Thomas Gholson, Peterson Goodwyn, Edwin Gray, Nathaniel A. Haven, Daniel Heister, Jacob Huffy, Thomas Kenan, William Kennedy, Robert Le Roy Livingston, John love, Matthew Lyon, Aaron Lyle, Nathaniel Macon, Alexander Mckim, William Mckinley, Pleasant M. Miller, Samuel L. Mitchell, John Montgomery, Nicholis R. Moore, Thos. Moore, Jeremiah Morrow, Thomas Newbold, Thomas Newton Benjamin Pickman, jr., John Porter, Peter B. Porter, John Rhea of Pennsylvania, John Rhea of Tennessee, Matthias Richards, John Roane, Erastus Root, John Ross, Ebenezer Sage, Lemuel Sawyer, John A. Scudder, Ebenezer Seaver, Samual Shaw, Daniel Sheffey, John Smilie, George Smith, Samuel Smith, Henry Southard, Richard Stanford, John Stanley Jacob Swoope, Uri Tracy, George M. Troup, Charles, Turner, jr., Archibald Van Horn, Robert Weakley, Robert Whitehill, James Wilson, and Robert Wright.
 

And so the bill was rejected, two thirds of the House not agreeing to pass the same.

Source of Information:

The Debates and Proceedings of the Congress of the United States with an Appendix containing Important State papers and The Public Documents, and all The Laws of a Public Nature; with a Copious Index. Eleventh Congress - Third Session. Comprising the Period from December 3, 1810 to March 3, 1811, Inclusive. Compiled from Authentic Materials. Washington: Printed and published by Gales and Seaton, (1853) pp 995 - 998.

 

February 23, 1811 (Senate)
 

A message from the House of Representatives informed the Senate that the bill entitled "An act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia," which passed the two houses of Congress, and as presented to the President of the United States for his approbation and signature, and returned by him, on the 21st instant, to the House of Representatives, in which House it originated, with the following objections:
 

"Because the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and violates in particular the article of the Constitution of the United States which declares that "Congress shall make no law respecting a religious establishment.'' The bill enacts into and establishes by law sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the minister of the same, so that no change could be made therein by the particular society or by the general church of which it is a member, and whose authority it recognizes. this particular church, therefore, would so far be a religious establishment by law, a legal force and sanction being given to certain articles in its constitution and administration. Nor can it be considered that the articles thus established are to be taken as the descriptive criteria only of the corporate identity of the society, inasmuch as this identity must depend on other characteristics, as the regulations established are generally unessential and alterable according to the principles and canons by which churches of that denomination govern themselves, and as the injunctions and prohibitions contained in the regulations would be enforced by the penal consequences applicable to a violation of them according to the local law."
 

"Because the bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty."
 

And that upon a reconsideration of the bill, two-thirds of the House of Representatives did not agree to pass the same.

Source of Information:

The Debates and Proceedings of the Congress of the United States with an Appendix containing Important State papers and The Public Documents, and all The Laws of a Public Nature; with a Copious Index. Eleventh Congress - Third Session. Comprising the Period from December 3, 1810 to March 3, 1811, Inclusive. Compiled from Authentic Materials. Washington: Printed and published by Gales and Seaton, (1853) p 351.

 

February 28, 1811
 

Veto Message
February 28, 1811.
 

To the House of Representatives of the United States.
 

Having examined and considered the bill entitled "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory, " I now return the same to the House of Representatives, in which it originated, with the following objection:
 

Because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment."
 

James Madison

Source of Information:

A Compilation of The Messages And Papers of The Presidents, Vol. II, . Bureau of National Literature, N Y, pp 474-475

 

March 2, 1811
 

The House proceeded to reconsider the bill "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory:" which was returned by the President of the United States with objections.
 

The said bill was read at the Clerk's table, and is as follows:
 

An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory:
 

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That Richard Tervin be and he is hereby authorized to produce to the Register of the Land office and the receiver of public moneys for the district east of Pearl River, in the Mississippi Territory, evidence, of his having inhabited and cultivated a tract of land in said territory, prior to the thirtieth day of March, one thousand seven hundred and ninety-eight; and, in case such evidence shall be produced, the said Register and Receiver are required to grant to the said Richard Tervin a donation certificate for such tract of land, not exceeding six hundred and forty acres.
 

Sec. 2. And be it further enacted, That William Coleman be and he is hereby authorized to produce to the said register and receiver evidence of his right to a donation of a tract of land on the Tombigbee river, in the said Territory; and in case he shall produce satisfactory evidence to the said Register and Receiver that he was entitled to a donation of such a tract, according to the provisions of the second section of the act, entitled "An act regulating the grants of land, and providing for the disposal of the lands of the United States south of the State of Tennessee," and the acts supplementary thereto, it shall then be lawful for the said William Coleman to locate a quantity of land equal to that to which he was entitled under the abovementioned provisions, on any lands of the United States which shall have been offered at public sale in the said district, and that shall then remain unsold; and it shall be the duty of the said register and receiver to issue a donation certificate to the said William Coleman for the land so located by him.
 

Sec. 3. And be it further enacted, That Edwin Lewis be entitled to the right of preemption in five acres of land situate within the boundaries of a tract of land whereon he resides; which five acres was heretofore used for an encampment for the troops of the United States, so soon as the same shall cease to be used for that purpose; the said five acres to be paid for at the same price, and on the same terms and conditions as are provided for lands granted by right of preemption in the Mississippi territory.
 

Sec. 4. And be it further enacted, that Samuel Mims be and he is hereby confirmed in his title to a tract of land containing five hundred and eighty-four acres granted by the British Government of west Florida to William Clark, so as not to deprive the heirs of said Clark, or any other person or persons of their legal remedy, if any they have, for the recovery of said lands from the said Mims, his heirs or assigns.
 

Sec. 5. And be it further enacted, that Joseph Wilson be and he is hereby authorized to enter with the register of the Land Office his certificate of preemption right granted to him by the Board of Commissioners for the district east of the Pearl river, in the Mississippi Territory, for the quantity of four hundred and eighty acres of land lying on the Tombigbee river, in the said Territory; and that payment be made therefore at the same price and on the same terms and conditions as are provided by law for other lands granted in the right of preemption in said Territory.
 

Sec. 6. And be it further enacted, That there be reserved the quantity of five acres of land, including Salem Meeting-house, in the Mississippi Territory, for the use of the Baptist Church, at said meeting-house.
 

J. B. VARNUM
Speaker of the House of Representatives
GEO. CLINTON
Vice President of the United States, and
President of the Senate.

 

The President's objections were also again read: And after debate the question, "That the House on reconsideration do agree to pass the bill," was taken in the mode prescribed by the constitution of the United States, and determined in the negative - yeas 33, nays 55, as follows:
 

Yeas - Abijah Bigelow, Daniel Blaisdell, John C. Chamberlain, Epaphroditus Champion, John Davenport, jr., William Ely, James Emot, Thomas R. Gold, William Hale, Nathaniel A. Haven, Jothan H. Hubbard, , Ebenezer Huntington, Richard Jackson, jr., Herman Knickerbacker, Joseph Lewis, jr., Robert Le Roy Livingston, William McKinley, William Milnor, Nicholas R. Moore, Jeremiah Morrow, Benjamin Pickman, jr., Timothy Pitkin jr., john Porter, Elisha R. Potter, Daniel Sheffey, Lewis B. Sturges, Samuel Taggart, Benjamin Talimadge, John Thompson, Nicholas Van Dyke, Killian K. Van Rensselaer, Ezekiel Whitman and James Wilson.
 

Nays - Lemuel J. Alston, Willis Alston, jr., William Anderson, William T. Barry, Adam Boyd, Matthew Clay, James Cochran, William Crawford, Richard Cutis, John Dawson, Joseph Desha, Barzillar Gannett, Gideon Gardner, Thomas Gholson, Peterson Goodwyn, Daniel Heister, James Hollan, Jacob Huffy, Richard Johnson, John Love, Matthew Lyon, Aaron Lyle, Nathaniel Macon, Alexander Mckim, William Mckinley, Samuel L. Mitchell, Thomas Moore, Gordon S. Mumford, Thomas Newbold, Thomas Newton, Joseph Pearson, Peter B. Porter, John Rhea of Tennessee, Matthias Richards, Samuel Ringgold, John Roane, Erastus Root, John Ross, Ebenezer Sage, Lemuel Sawyer, John A. Scudder, Ebenezer Seaver, Samuel Shaw, George Smith, John Smith, Samuel Smith, Henry Southard, Richard Stanford, John Stanley, Uri Tracy, Charles, Turner, jr., Robert Weakly, Robert Whitehall, and Robert Wright..
 

And so the said bill was rejected, two thirds of the House not agreeing to pass the same.

Source of Information:

The Debates and Proceedings of the Congress of the United States with an Appendix containing Important State papers and The Public Documents, and all The Laws of a Public Nature; with a Copious Index. Eleventh Congress - Third Session. Comprising the Period from December 3, 1810 to March 3, 1811, Inclusive. Compiled from Authentic Materials. Washington: Printed and published by Gales and Seaton, (1853) pp 1104-1105.

 

March 2, 1811 (Senate)
 

A message from the House of Representatives informed the Senate that the bill which had passed the two Houses of Congress at the present session entitled "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory," and presented to the President of the United States for his approbation has been returned by the President of the United States with the following objections:
 

"Because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment."
 

And the House of Representatives in which the bill originated have taken the question in the Constitutional way and have
 

Resolved. That the said bill do not pass.

Source of Information:

The Debates and Proceedings of the Congress of the United States with an Appendix containing Important State papers and The Public Documents, and all The Laws of a Public Nature; with a Copious Index. Eleventh Congress - Third Session. Comprising the Period from December 3, 1810 to March 3, 1811, Inclusive. Compiled from Authentic Materials. Washington: Printed and published by Gales and Seaton, (1853) p 366.

 

March 2, 1811 (Senate)
 

Mr. CAMPBELL asked and obtained leave to bring in a bill for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson; and, on motion by Mr. SMITH, of Maryland, the bill was read the first and second time by unanimous consent. On the question, Shall this bill be read a third time? It was determined in the affirmative. The bill was then read the third time by unanimous consent and passed.

Source of Information:

The Debates and Proceedings of the Congress of the United States with an Appendix containing Important State papers and The Public Documents, and all The Laws of a Public Nature; with a Copious Index. Eleventh Congress - Third Session. Comprising the Period from December 3, 1810 to March 3, 1811, Inclusive. Compiled from Authentic Materials. Washington: Printed and published by Gales and Seaton, (1853) p 366.

 

March 2, 1811
 

A bill from the Senate for the relief of Richard Tervin and others being the same bill as that returned by the President, with the exception of the objectionable section respecting the church claim, was read three times and passed.

Source of Information:

The Debates and Proceedings of the Congress of the United States with an Appendix containing Important State papers and The Public Documents, and all The Laws of a Public Nature; with a Copious Index. Eleventh Congress - Third Session. Comprising the Period from December 3, 1810 to March 3, 1811, Inclusive. Compiled from Authentic Materials. Washington: Printed and published by Gales and Seaton, (1853) p 1106.

 

March 3, 1811 (SENATE)
 

[It has to be noted that March 3, 1811, was a Sunday. Therefore, it has to be noted that Congress has at times in our nations history met in session on Sundays, the Christian Sabbath.]
 

A message from the House of Representatives informed the Senate that the House have passed the bill, sent from the Senate entitled "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson;" with an amendment in which they desire the concurrence of the Senate.
 

The Senate proceeded to consider the amendment of the House of Representatives to the bill entitled, "An Act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson," and concurred therein.

Source of Information:

The Debates and Proceedings of the Congress of the United States with an Appendix containing Important State papers and The Public Documents, and all The Laws of a Public Nature; with a Copious Index. Eleventh Congress - Third Session. Comprising the Period from December 3, 1810 to March 3, 1811, Inclusive. Compiled from Authentic Materials. Washington: Printed and published by Gales and Seaton, (1853) p 367.

 

June 3, 1811
 

To the Baptist Churches in Neal's Creek and on Black Creek, North Carolina.
 

I have received, fellow-citizens, your address, approving my objection to tile Bill containing a grant of public land to the, Baptist Church at Salem Meeting House: Mississippi Territory. Having always regarded tile practical distinction between Religion and Civil Government as essential to the purity of both and as guaranteed by the Constitution of the United States. I could not have otherwise discharged my duty on the occasion which presented itself. Among the various religious societies in our Country, none has been more vigilant or constant in maintaining that distinction than the Society of which you make a part, and it is an honorable proof of your sincerity and integrity, that you are as ready to do so in a case favoring the interest of your brethren as in other cases. It is but dust, at the same time, to the Baptist Church at Salem Meeting House, to remark that their application to the National legislature does not appear to have contemplated a grant of the land in question but on terms that might be equitable to the public as well as to themselves.
 

Accept my friendly respects.
 

JAMES MADISON.
 

June 3d, 1811

Source of Information:

Letters And Other Writings of James Madison, Fourth President Of The United States In Four Volumes Published By the Order Of Congress, Vol..II, J. B. Lippincott & Co., Philadelphia, (1865) pp 511-512.
 

References to Madison's "Detached Memoranda"

"What is significant with respect to the date of its writing is the Madison's "Detached Memoranda' interprets the Constitution and the Bill of Rights and, unlike the Declaration of Independence, does not rest exclusively on the laws of nature or nature's God, on Madison own "Memorial and Remonstrance, or on Jefferson's Virginia Statute for Religious Freedom, although all are reported, confirmed, and defended. It would seem, therefore that the "Detached Memoranda" would be the best source for determining the intended meaning of the "religion" clauses of the First Amendment (and the provision of article VI of the Constitution forbidding religious test for public office) at least by the primary draughtsman of both the Constitution and First Amendment.

The "Detached Memoranda" considers eight issues relating to religion that have reached the Supreme Court in one way or another since the Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation of churches; (3) grants of public land to churches; (4) tax exemption of religious entities; (5) the Deity in government documents; (6) congressional chaplaincies; (7) military chaplaincies; and (8) religious proclamations by the government."

Source of Information:

Pfeffer, Leo, "Madison's ‘Detached Memoranda': Then and Now." The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 286, 87.

"The ‘Detached Memoranda' speaks of a case in which Madison ‘withheld his signature' from a bill that he believed to be an encroachment by ecclesiastical bodies on the separation between church and state.46 This was only the second time that a president had exercised what was later to become known as a ‘pocket veto,' a power conferred on presidents by Article 1, Section 7(2), of the Constitution. 47

In the ‘Detached Memoranda,' Madison did not identify the measure , that he had vetoed, other than by declaring the measure to be a violation of the ‘establishment' clause. Research discloses that he was referring to A Bill for the Relief of Bible Societies in the United States (excepting from duty all plates, etc. imported for such societies), which had been passed in 1816. 48

FOOTNOTEs:

47 The first veto, also by Madison, was of a naturalization bill passed in 1812.

48 The source for this is U. S. Congress, House, House Document No. 493, 70th Cong., 2d sess., p. 2."

Source of Information:

Pfeffer, Leo, "Madison's ‘Detached Memoranda': Then and Now." The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 293 and 309.

Excerpts:

The danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U.S. They have the noble merit of first unshackling the conscience from persecuting laws, and of establishing among religious Seas a legal equality. If some of the States have not embraced this just and this truly Xn principle in its proper latitude, all of them present examples by which the most enlightened States of the old world may be instructed; and there is one State at least, Virginia, where religious liberty is placed on its true foundation and is defined in its full latitude. The general principle is contained in her declaration of rights, prefixed to her Constitution: but it is unfolded and defined, in its precise extent, in the act of the Legislature, usually named the Religious Bill, which passed into a law in the year 1786. Here the separation between the authority of human laws, and the natural rights of Man excepted from the grant on which all political authority is founded, is traced as distinctly as words can admit, and the limits to this authority established with as much solemnity as the forms of legislation can express.

Ye States of America, which retain in your Constitutions or Codes, any aberration from the sacred principle of religious liberty, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise & pur'fy your systems, and make the example of your Country as pure & compleat, in what relates to the freedom of the mind and its allegiance to its maker, as in what belongs to the legitimate objects of political & civil institutions.

Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history. (See the, cases in which negatives were put by J. M. on two bills passd by Congs and his signature withheld from another. See also attempt in Kentucky for example, where it was proposed to exempt Houses of Worship from taxes. 47

The most notable attempt was that in Virga to establish a Genl assessment for the support of all Xn sects. This was proposed in the year____ by P. H 48 and supported by all his eloquence, aided by the remaining prejudices of the Sect which before the Revolution had been established by law.48a The progress of the measure was arrested by urging that the respect due to the people required in so extraordinary a case an appeal to their deliberate will. The bill was accordingly printed & published with that view. At the instance of Col: George Nicholas, Col : George Mason & others, the memorial & remonstrance agst it was drawn up, (which see)49 and printed Copies of it circulated thro' the State, to be signed by the people at large. It met with the approbation of the Baptists, the Presbyterians, the Quakers, and the few Roman Catholics, universally; of the Methodists it part; and even of not a few of the Sect formerly Established by law.

FOOTNOTES:

47 On Feb. 21, 1811, Madison vetoed a bill for incorporating the Episcopal Church in Alexandria and on Feb. 28, 1811, one reserving land in Mississippi territory for a Baptist Church. James D. Richardson, Messages and Papers of the Presidents (Washington, 1896-1899), 1, 489-490.

48 Proposed in 1784 by Patrick Henry.

48aThe Episcopal church.

49 Madison, Letters, 1, 162-169.

Source of Information:

"Notes and Documents, Madison's ‘Detached Memoranda.'" Edited by Elizabeth Fleet. The William and Mary Quarterly, Third Series, Vol.III, October 1946, Number 4, p 555.

REPORT ON POCKET VETO

MESSAGE

from

THE PRESIDENT OF THE UNITED STATES

Transmitting

A Memorandum Prepared in the Office of The: Attorney General Regarding Bills Presented to the President less than 10 Days Before the Adjournment of Congress and Not Signed by Him

___________________________

December 22, 1928:-Referred to the Committee on the Judiciary and ordered to be printed

_______________________

THE WHITE HOUSE, December 22, 1928

To the Congress of the United States:

I am transmitting herewith for the information of the Congress's memorandum prepared in the office of the Attorney General regarding bills presented to the President less than ten days before the adjournment of Congress and not sighed by him.

Calvin Coolidge.

__________________________

Department of Justice, Washington, October 10, 1928

Memorandum for the Attorney General

In re bills presented to the President less than ten days before the adjournment of Congress and not signed by him. In the case of each such bill, what was done with the engrossed copy of the bill, and what communication or memorandum was made in connection with such disposition?

Such unsigned bills are found in four places: in the custody of the Secretary of the Senate; in the custody of the Manuscript Division of the Library of Congress (where Presidential messages to the House of Representatives prior to the Civil War have been deposited); in the archives of the State Department, and the White House office building. The unsigned bills before the Civil War may be found in one or the other of the first three places. From the beginning of the administration of president Lincoln to the end of the first session of the first Congress in the administration of President Cleveland they were sent to the State Department. Since then, with but three exceptions, no such unsigned bills have been sent away from the White House. Those three exceptions are one bill sent to the State Department by President Benjamin Harrison during a Christmas recess in 1892 and two bills sent to the State Department by President Cleveland during a Christmas recess in 1896.

A bill relating to naturalization was passed by the House of Representatives on July 2, 1812 (Annals of Congress, 12th Cong., 1st sess., 1574) and by the Senate on July 4. (Annals, 318) Congress adjourned on July 6. (Annals, 322, 1586) The President did not sign this bill, but at the next session he sent a message to Congress explaining his unwillingness to do so. The message was dated Nov. 5 and was sent to Congress on the following day. There is no message or vetoed bill of that session in the custody of the Secretary of the Senate. The suggestion is made that any such documents may have been burned when the British destroyed the capitol in 1814. The Library of Congress has a bound volume containing several messages sent to Congress in that session. I have seen the Annual Message, dated Nov. 4, 1812, and a letter of transmittal from the President dated Nov. 5, but no copy of a message of Nov. 5, and no copy of the bill involved. I quote from the proceedings of Congress for Nov. 6, as given in Annals of Congress, 12th Cong., 2d sess., 17:

To the Senate and House of Representatives of the United States:

The bill, entitled "An act supplementary to the acts heretofore passed on the subject of an uniform rule of naturalization," which passed the two Houses at the last session of Congress, having appeared to me liable to abuse by aliens having no real purpose of effectuating a naturalization, and therefore not been signed; and having been. presented at an hour too near the end of the session to be returned with objections for reconsideration, the bill failed to become a law. I also recommend that provision be now made in favor of aliens entitled to the contemplated benefit, under such regulations as will prevent advantage being taken of it for improper purposes.

J. Madison.

November 5, 1812.

This message is printed in Richardson, Messages of the Presidents, I, 523.

In the archives of the State Department is a volume labeled "Pocketed Laws 1815-1878." It contains engrossed bills of that period. The first one in the volume was passed in the 14th Congress, first session, to provide for the free importation of stereotype plates and to encourage the printing and gratuitous distribution of the Scriptures by the Bible societies throughout the United States. The session adjourned April 30, 1816. (Annals of Congress, 14th Cong. 1st sess., 371, 1466) In the margin of the bill are the words:

34 bills presented to the president by Mr. Roberts of the Senate on Saturday Apl 27, 1816. 34 do, do, on Monday April 29: others afterwards. See the Laws. The adjournment of Congress took place on the 30th of April.

This memorandum is unsigned but seems to be in President Madison's handwriting. Attached to the bill is a slip reading:

"An act for the free importation of Stereotype plates, and to encourage the printing and gratuitous distribution of the Scriptures by the bible societies within the United States." Not approved.

This memorandum also is unsigned. It was not written by the person who wrote the memorandum on the bill itself.

Source of Information:

70th Congress, 2nd Session, House of Representatives, Docket No. 493. U S Congress, Congressional Documents, Document No. 493. CIS US Serial Set Index, Part IX, 69th - 73rd Congresses, 1925-1934 Finding Lists, pg 923. Document No. 493, Report on Pocket Veto, pg 2-3. Volume 32, Serial 9035 microfiche 6.

The fourth piece of legislation referred to in the "Detached Memoranda" in relationship to ecclesiastical encroachments on the constitutional mandate of church-state separation dealt with an attempt in Kentucky "to exempt Houses of Worship from taxes."55 Unfortunately, Madison did not indicate when this apparently unsuccessful effort had taken place. What we do know is that the entry dated January 21, 1816, in the Journal of the House of Representatives (1815-16) of the commonwealth of Kentucky notes that the governor approved and signed "an act for exempting from taxation houses devoted to public worship, and seminaries of learning, and the ground on which they are erected. "56

This is the exact opposite of what Madison wrote. Hence, two alternatives seem possible: Either Madison was mistaken about what had happened in Kentucky, or he wrote the "Detached Memoranda" (or at least this section) after the Kentucky act had been passed but before the news of it reached him. Neither alternative is acceptable based on other historical evidence, and the confusion remains.

FOOTNOTES:

55 Fleet, p. 555. The author of this essay wishes to express his appreciation to Laurel Welch, librarian of the Kentucky Historical Association, for her assistance in his presentation of this aspect of the tax-exemption question.

56 Commonwealth of Kentucky, Journal of the House of Representatives, p. 245.

Source of Information:

Pfeffer, Leo, "Madison's ‘Detached Memoranda': Then and Now." The Virginia Statute for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 294-95.