Part II
Excerpts from James Madison's Detached Memoranda (written after 1817)
http://members.tripod.com/~candst/detach.htm
****************************
JULY 10, 1822
I observe with particular pleasure the view you have taken of the
immunity of Religion from civil jurisdiction, in every case where it does
not trespass on private rights or the public peace. This has always been a
favorite principle with me; and it was not with my approbation, that the
deviation from it took place in Congs. when they appointed Chaplains, to be
paid from the Natl Treasury. It would have been a much better proof to
their Constituents of their pious feeling if the members had contributed
for the purpose, a pittance from their own pockets. As the precedent is not
likely to be rescinded, the best that can now be done, may be to apply to
the Constn. the maxim of the law, de minimis non curat.
There has been another deviation from the strict principle in the
Executive Proclamations of fasts & festivals, so far, at least, as they
have spoken the language of injunction, or have lost sight of the equality
of all religious sects in the eye of the Constitution.
Whilst I was honored with the Executive Trust I found it necessary
on more than one occasion to follow the example of predecessors. But I was
always careful to make the Proclamations absolutely indiscriminate, and
merely recommendatory; or rather mere designations of a day, on which all
who thought proper might unite in consecrating it to religious purposes,
according to their own faith & forms. In this sense, I presume you reserve
to the Gov' a right to appoint particular days for religious worship
throughout the State, without any penal sanction enforcing the worship.
I know not what may be the way of thinking on this subject in
Louisiana. I should suppose the Catholic portion of the people, at least,
as a small & even unpopular sect in the U.S., would rally, as they did in
Virga when religious liberty was a Legislative topic, to its broadest
principle.
Nothwithstanding the general progress made within the two last
centuries in favour of this branch of liberty, & the full establishment of
it, in some parts of our Country, there remains in others a strong bias
towards the old error, that without some sort of alliance or coalition
between Govt. & Religion neither can be duly supported. Such indeed is the
tendency to such a coalition, and such its corrupting influence on both
the parties, that the danger cannot be too carefully guarded ags'. And in
a Gov' of opinion, like outs, the only effectual guard must be found in
the soundness and stability of the general opinion on the subject. Every
new & successful example therefore of a perfect separation between
ecclesiastical and civil matters, is of importance. And I have no doubt
that every new example, will succeed, as every past one has done, in
shewing that religion & Gov' will both exist in greater purity, the less
they are mixed together.
It was the belief of all sects at one time that the establishment
of Religion by law, was right & necessary; that the true religion ought to
be established in exclusion of every other; and that the only question to
be decided was which was the true religion. The example of Holland proved
that a toleration of sects, dissenting from the established sect, was safe
& even useful. The example of the Colonies, now States, which rejected
religious establishments altogether, proved that all Sects might be safely
& advantageously put on a footing of equal & entire freedom.... We are
teaching the world the great truth that Gov" do better without Kings &
Nobles than with them. The merit will be doubled by the other lesson that
Religion flourishes in greater purity, without than with the aid of Gov'.
SOURCE: Excerpt of letter to Edward Livingston from James Madison, July 10,
1822. Letters and Other writings of James Madison, in Four Volumes,
Published by Order of Congress. VOL. III, J. B. Lippincott & Co.
Philadelphia, (1865), pp 273-276. James Madison on Religious Liberty,
Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83)
****************************
COMMENTARY
[From Marsh v. Chambers]
The tradition in many of the Colonies was, of course, linked to an
established church, 5 but the Continental Congress, beginning in 1774,
adopted the traditional procedure of opening its sessions with a prayer
offered by a paid chaplain. See, e. g., 1 J. Continental Cong. 26 (1774); 2
id., at 12 (1775); 5 id., at 530 (1776); 6 id., at 887 (1776); 27 id., at
683 (1784). See also 1 A. Stokes, Church and State in the United States
448-450 (1950). Although prayers were not offered during the Constitutional
Convention, 6 the First Congress, as one of [463 U.S. 783, 788] its
early items of business, adopted the policy of selecting a chaplain to open
each session with prayer. Thus, on April 7, 1789, the Senate appointed a
committee "to take under consideration the manner of electing Chaplains."
S. Jour., 1st Cong., 1st Sess., 10 (1820 ed.). On April 9, 1789, a similar
committee was appointed by the House of Representatives. On April 25, 1789,
the Senate elected its first chaplain, id., at 16; the House followed suit
on May 1, 1789, H. R. Jour., 1st Cong., 1st Sess., 26 (1826 ed.). A statute
providing for the payment of these chaplains was enacted into law on
September 22, 1789. 7 2 Annals of Cong. 2180; 4, 1 Stat. 71. 8
[ Footnote 8 ] It bears note that James Madison, one of the principal
advocates of religious freedom in the Colonies and a drafter of the
Establishment Clause, see, e. g., Cobb, supra n. 5, at 495-497; Stokes, at
537-552, was one of those appointed to undertake this task by the House of
Representatives, H. R. Jour., at 11-12; Stokes, at 541-549, and voted for
the bill authorizing payment of the chaplains, 1 Annals of Cong. 891
(1789).
MARSH v. CHAMBERS, 463 U.S. 783 (1983)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=463&invol=783
****************************
Now let's look at the historical record regarding the compensation
bill that would eventually include the salary for those chaplains.
* May 1, 1789, the appointment of a committee on compensation for
President and members of Congress.
* May 25, 1789 compensation for the Speaker of the House was added.
* July 16, 1789 compensation for secretary of the Senate and clerk of
the House was added. At this point two bills emerged from the original
bill. One focusing on compensation for the President and Vice President,
[HR-15] the other focusing on the members of Congress and the officers of
Congress [HR-19]
* July 22, 1789 compensation for the sergeant at arms, messengers, and
doorkeepers of both houses were added to the [HR-19]
* August 4, 1789 [HR-19] was read for the first time.
* August 6, 1789, Chaplains were added to the list with a salary set at
$500.00 a year.
* August 10, 1789, the Salaries-Legislative Bill [HR-19} appeared as
follows:
* August 28, 1789, the salary for chaplains was amended, dropping it
from $500.00 to $400.00 per year and the words "during the session of
Congress" were struck out.
* August 31, 1789, The Senate disagreed to reconsider this above action
in order to agree to the $500.00 originally set by the House. The House, in
turn, refused to agree to the lower salary, and eventually the Senate did
recede from their amendment lowering the salary.
It is important to note that there was bickering between the
members of the House, and then between the two Houses of Congress
throughout most of August and the early part of September over the amounts
each groups should receive in salary. From Senators all the way down to
assistant doorkeepers and common laborers. So it wasn't just Chaplains, but
it is important to note that chaplains were mentioned only a couple of
times throughout this entire process. They were not originally included at
all, and then little notice was taken of them. The Senate did mention them
in two of its three amendments [to lower the salary from $500.00 to $400.00
and to strike out the wording "During the session of Congress." The House
refused to go along with both those two amendments and the Senate did
eventually recede from both.]
With more compromising between the House and the Senate the bill
was finally agreed to and passed on September 12, 1789.
Its final form read as follows:
SALARIES--LEGISLATIVE ACT [HR-19]
September, 22, 1789
AN ACT FOR ALLOWING COMPENSATION TO THE MEMBERS OF THE SENATE AND HOUSE
OF REPRESENTATIVES OF THE UNITED STATES, AND TO THE OFFICERS OF BOTH HOUSES
[1] BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, That at every Session of
Congress, and at every meeting of the Senate in the recess of Congress
prior to the fourth day March in the Year One thousand seven hundred and
ninety five, each Senator shall be entitled to receive six dollars for
every day he shall attend the Senate, and shall also be allowed at the
commencement and end of every such Session and meeting, six dollars for
every Twenty Miles of the estimated distance by the most usual road from
his place of residence to the Seat of Congress, and in case any Member of
the Senate shall be detained by sickness on his Journey to or from any such
Session or meeting, or after his arrival shall be unable to attend the
Senate, he shall be entitled to the same daily allowance; PROVIDED ALWAYS,
that no Senator shall be allowed a sum exceeding the rate of six dollars a
day from the end of one such Session or meeting to the time of his taking a
Seat in another.
[2) AND BE IT FURTHER ENACTED, that at every Session of Congress, and
at every meeting of the Senate in the recess of Congress, after the
aforesaid fourth day of March in the year One thousand seven hundred and
ninety five, each Senator shall be entitled to receive seven dollars for
every day he shall attend the Senate, and shall also be allowed at the
commencement and end of every such Session and meeting, seven dollars for
every twenty miles of the estimated distance by the most usual road from
his place of residence to the Seat of Congress, and in case any Member of
the Senate shall be detained by sickness on his journey to or from any such
Session or Meeting, or after his arrival shall be unable to attend the
Senate, he shall be entitled to the same allowance of seven dollars a day;
PROVIDED ALWAYS, that no Senator shall be allowed a sum exceeding the rate
of seven dollars a day, from the end of one such Session or meeting to the
time of his taking a Seat in another.
[3] AND BE IT FURTHER ENACTED that at every Session of Congress each
Representative shall be entitled to receive six Dollars for every day he
shall attend the House of Representatives, and shall also be allowed at the
commencement and end of every session, six dollars for every twenty miles
of the estimated distance, by the most usual road from his place of
residence to the seat of Congress; and in case any Representative shall be
detained by sickness on his journey to, or from the Session of Congress, or
after his arrival shall be unable to attend the House of Representatives,
he shall be entitled to the daily allowance aforesaid; and the Speaker of
the House of Representatives to defray the incidental expences of his
Office, shall be entitled to receive in addition to his compensation its a
Representative, six Dollars for every day he shall attend the House.
PROVIDED ALWAYS, that no Representative shall be allowed a sum exceeding
the rate of six dollars a day from the end or one such Session or meeting,
to the time of his taking a seat in another.
[4] AND BE IT FURTHER ENACTED that there shall be allowed to each
Chaplain of Congress, at the rate of five hundred dollars per annum during
the Session of Congress; to the Secretary of the Senate, and Clerk of the
House of Representatives fifteen hundred dollars per annum each, to
commence from the time of their respective appointments, and also further
allowance of two dollars per day to each, during the Session of that branch
for which he officiates: And the said Secretary and Clerk shall each be
allowed, (when the President of the Senate or Speaker shall deem it
necessary) to employ one principal Clerk, who shall be paid three dollars
per day; and an engrossing Clerk who shall be paid two dollars per day
during the Session, with the like compensation to such Clerk while he shall
be necessarily employed in the recess.
[5] AND BE IT FURTHER ENACTED that the following compensation shall be
allowed to the officers hereinafter mentioned, vizt. to the Serjeant at
Arms during the Sessions, and while employed in the business of the House
four dollars per day; the allowance of the present Serjeant at Arms to
commence from the time of his appointment; to the door keeper of the Senate
and House of Representatives; for their services In those Offices, three
dollars per day, during the Session of the House to which he may belong,
for his own services, and for the hire of necessary labourers; the
allowance to the present door keeper of the Senate, to, commence from the
day appointed for the meeting of Congress, and the allowance to the door
keeper of the House of Representatives, to commence from this appointment:
And to the Assistant door keeper to each House. two, dollars per day during
the sessions.
[6] AND BE IT FURTHER ENACTED, that the Said compensation which shall
be due to the members and Officers of the Senate, shall be certified by the
President and that which shall be due to the Members and Officers of the
House of Representatives, shall he certified by the Speaker, and the same
shall be passed as Public Accounts, and paid out of' the public Treasury.
[7] AND BE IT FURTHER ENACTED, that this act Shall continue in force,
until the fourth day of March, in the year One thousand seven hundred and
ninety six, and no longer.
SOURCE: Excerpt from * Discrepancies [The Historical record ]
http://members.tripod.com/~candst/discrep.htm
.
|
