A Brief Explanation and Defense of General Equity

 

Defining Law in General

“Law, in its most general and comprehensive sense, signifies a rule of action.” (William Blackstone, Commentaries on the Laws of England, intro., sect. 2)

“Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for "lex" [law] is derived from "ligare" [to bind], because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts, as is evident from what has been stated above (I-II:1:1 ad 3); since it belongs to the reason to direct to the end, which is the first principle in all matters of action, according to the Philosopher (Phys. ii). Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently it follows that law is something pertaining to reason..” (Thomas Aquinas, Summa Theologiae, II-I, Q. 90, art. 1)

“Even if, in fact, all just laws come from God, and have been established by the eternal reason of his will and even if in this respect, they are all divine, still because of the variety of people and of methods by which they have been revealed and spread, they occur in three types: natural law, human laws, and divine laws.” (Jerome Zanchius, On the Law in General, trans. Jeffrey J. Veenstra [Grand Rapids, MI: Christian Library Press, 2012], pg. 8)

The chief end of law is towards the common good of the people. The chief cause of obligation is the supreme will of God, as James Wilson said. The genus and specific difference of law is that it is an ordering of reason toward the common good of the community. This ordering of reason consists in 1) the reason of the one who orders; 2) the reason of those who are government; 3) the very reason of ordering between both. 

We can divided the law into the eternal law of God, or laws established in time. The former is defined by Junius as “the immutable concept and form of reason existing in God.” (Franciscus Junius, The Mosaic Polity, trans. Todd M. Rester [Grand Rapids, MI: Christian Library Press, 2015], 42). The latter are divided into natural laws and human laws. By "human laws", we mean those positive statutes of nations and courts throughout history. This would include "common law", i.e. the unwritten precedents of law, especially in England's history (as a key example). 

The positive laws of nations and political laws are, or at least should be, derived from the principles of natural law. This may be seen in the distinction between the letter of the law and the spirit of the law. For example, take a law in which a besieged city is not allowed to open the city gates. The spirit of this law is for protection against a hostile enemy. But if in the case of a battle, they did not open the city gates to that nation’s soldiers and they were all slaughtered outside, then this would be a violation of the spirit of the law.

“The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things.” (James Wilson, Lectures on Law, part 1, ch. 3)

The Judicial Laws of Moses

The written law has three basic parts: commands, promises, and threats.

Leviticus 19 is an example of a passage containing moral (vv. 11-13), ceremonial (vv. 5-8), and judicial laws (vv. 9-10). 

Moses himself teaches some type of distinction between the Ten Commandments and other laws in Deuteronomy 4:13-14: “And he declared unto you his covenant, which he commanded you to perform, even ten commandments; and he wrote them upon two tables of stone. And the Lord commanded me at that time to teach you statutes and judgments, that ye might do them in the land whither ye go over to possess it.”

In a civil state or commonwealth, laws are made with respect to four social categories: —

1) Between the Magistrates and the citizens

2) Between the citizens themselves (a few examples, among many, would be Num. 31:33-34; Exodus 21-22; Leviticus 19:13; Deuteronomy 19:4-7, 15-21)

3) Within the household (the most basic societal unit), between husbands and wives, masters and servants, parents and children.

4) Between citizens and foreigners.

The Jewish state and its government contained a mixture of monarchy and aristocracy.. It had monarchy in that the Lord chose one man to represent the people of Israel (Deut. 17:15; Num. 27:16), as with Moses and Joshua, and then the kings during the period of division between Israel and Judah. It also had aristocracy in terms of there being the ruling 72 elders over the people. Deuteronomy 1:15 says “So I took the leaders of your tribes, wise and reputable individuals, and installed them as leaders over you.” Deuteronomy 16:18 shows that these leaders were to be native Israelites from among the people, and not foreigners.

In the judicial laws of Moses, the principle and end of the laws is divine and immutable, however their matter and form may be mutable.

In the immutable part of political laws (and therefore the Mosaic judicial laws) we distinguish the origin, object, and end. The origin is that from which the law flows as its proper source, and the object is that which the law regulates. 

Franciscus Junius cites the warnings against familial idolatry (Deut. 13:6-8) and the administration of the death penalty to witches (Exodus 22:18) as examples of immutable laws, since they proceed from pure and unalterable principles, namely that the Lord alone is to be worshiped and invoked. Furthermore, in the case of punishing witches, Scripture tells that the end of such laws is the glory of God (Deut. 18:12-13). Therefore, there is a perpetual obligation of the moral equity in such a law. 

There are particular determinations in the judicial laws of Moses that are mutable. In particular, laws are mutable if they were made to Jews insofar as they were Jews, as distinct from common and natural law which was made to them as a human nation like others. 

For example, it is part of the common law of nations and the light of Nature that theft should be punished by the civil magistrate, however the specific manner or degree of that punishment may vary according to circumstances. In the Mosaic law, one such penalty for a man who stole livestock (such as an ox or sheep) was that the offender would restore five oxen to the person he stole from (Exodus 22:1-4). However, this specific penalty is not binding on all nations today, though the principle of punishing theft (generally considered) is obviously binding. 

Samuel Rutherford made a strong case for why the moral law binds the civil magistrate to punish arch-heretics and false prophets who seduce others to their eternal perdition (I hope to address the civil punishment of heretics in another post soon, Lord willing). The seduction of souls is an act against the moral law. Hence, the New Testament warns us against such people (Matt. 7:5; Rom. 16:17). The punishment of such wicked men pertains to the moral law and has perpetual obligation. The punishment of it also pertains to natural law, hence Job, a Gentile, could say that it was to be punished by the judge (Job 31:26-28). In general, the promotion of the worship of the true God pertains to the light of nature, hence it was justly done by Gentile kings such as Darius (Daniel 3:29) and Artaxerxes (Ezra 7:26-27). Even pagan and heathen nations punished public atheism (Plato, Laws, Book 10, 884a). 

Reformed divines also explained that the Judicial Law can be considered in three different respects:

“The judicial law is entirely abrogated [1] so far as it concerns the distinction of Jews from Gentiles, and the typical signification of the kingdom of Christ. However, [2] as far as it concerns a form of civil government, it is abrogated in some particular aspects. For whatever was a particular proper right, such as peculiarly concerned the Jews, of which sort was the law concerning the office of the Levites, as another concerning inheritances not being transferred from one tribe to another, all of this kind have ceased. But [3] insofar as it concerned common right, enacted according to the law of nature for all men together, of which sort are the laws concerning the punishments for crimes, these same judicial laws all remain.” (Johann Heinrich Alting, Scriptorum Theologicorum Heidelberensium: Tomus Primus [1646], pg. 112)

“Therefore the judicial laws of Moses according to the substance and scope thereof must be distinguished . . . . . Some of them are laws of particular equity, some of common equity. Laws of particular equity, are such as prescribe justice according to the particular estate and condition of the Jews’ Commonwealth and to the circumstances thereof . . . . . Of this kind was the law, that the brother should raise up seed to his brother, and many such like: and none of them bind us, because they were framed and tempered to a particular people. Judicials of common equity, are such as are made according to the law or instinct of nature common to all men: and these in respect of their substance, bind the consciences not only of the Jews, but also of the Gentiles: for they were not given to the Jews as they were Jews, that is, a people received into the Covenant above all other nations, brought from Egypt to the land of Canaan, . . . but they were given to them as they were mortal men subject to the order and laws of nature as all other nations are.” (William Perkins, A Discourse of Conscience [1596], pg. 17)

A concrete biblical example in the New Testament of the principle of general equity can be seen in the words of the Apostle Paul in 1 Corinthians 9, concerning payments given to the ministers of the Gospel:

“Or is it only Barnabas and I who have no right to refrain from working for a living? 7 Who serves as a soldier at his own expense? Who plants a vineyard without eating any of its fruit? Or who tends a flock without getting some of the milk? 8 Do I say these things on human authority? Does not the Law say the same? 9 For it is written in the Law of Moses, “You shall not muzzle an ox when it treads out the grain.” Is it for oxen that God is concerned? 10 Does he not certainly speak for our sake? It was written for our sake, because the plowman should plow in hope and the thresher thresh in hope of sharing in the crop. 11 If we have sown spiritual things among you, is it too much if we reap material things from you? 12 If others share this rightful claim on you, do not we even more? Do you not know that those who are employed in the temple service get their food from the temple, and those who serve at the altar share in the sacrificial offerings? 14 In the same way, the Lord commanded that those who proclaim the gospel should get their living by the gospel.” (1 Corinthians 9:8-14)

Thus the apostle Paul brings forth a judicial law of Moses, takes the general principle of ethics therein, and applies to ministers under the New Testament as an argument for stipends. Notice verses 9 and 10 - "Is it for oxen that God is concerned? Does he not certainly speak for our sake?". Paul explicitly says that the judicial laws were "written for our sake", and not only for the Jews. However, he is not teaching theonomy (as seen in figures like R.J. Rushdoony, Greg Bahnsen, or Doug Wilson), since he also says that the positive and particular circumstances of the law do not apply ("Is it for oxen that God is concerned?"), but rather the general principle therein. 

Ecclesiastical Power and Local Congregations

Historically, the Congregationalists and Independents believed that church power and authority formally resided in the congregation as the multitude of believers, albeit with some nuances and limitations in its relation to church officers. The following quotations from certain Independents helps us to better understand their position:

“Wherefore the first, original grant of all church power and privileges is made unto believers as such. Theirs it is, with these two limitations:— (1.) That as such only they cannot exercise any church-power but upon their due observation of all rules and duties given unto this end; such are joint confession and confederation. (2.) That each individual do actually participate therein, according to the especial rules of the church, which peculiarly respects women that do believe.” (John Owen, The True Nature of a Gospel Church, in The Works of John Owen, 16:36)

“Wherefore all church-power is originally given unto the church essentially considered, which hath a double exercise;—first, in the call or choosing of officers; secondly, in their voluntary acting with them and under them in all duties of rule. 1. All authority in the church is committed by Christ unto the officers or rulers of it, as unto all acts and duties whereunto office-power is required; and, 2. Every individual person hath the liberty of his own judgment as unto his own consent or dissent in what he is himself concerned.” (John Owen, The True Nature of a Gospel Church, in The Works of John Owen, 16:40)

“The first subject of church-power is either Supreme, or Subordinate and Ministerial: The Supreme (by way of gift from the Father) is the Lord Jesus Christ: The Ministerial is either extraordinary; as the Apostles, Prophets and Evangelists; or Ordinary; as every particular Congregational church.” (1648 Cambridge Platform, ch. 5, sect. 1) 

All church power is given immediately by Christ to each part of the Catholic church (consistories, presbyteries, synods), rather than deriving the power of the keys from one church assembly to another, neither descending or ascending. 

“If we respect the order of nature, the power, by order of nature, is given by Christ immediately, first to the whole Catholic church, as is proved before at length, and by this order of nature it inhereth first in the whole Catholic church, as man’s organized entire body is, by nature’s order, the first adequate and principal subject of life and the reasonable soul, not this or this part; but in regard of order of time, or real derivation of power, this whole power is immediately conferred by Jesus Christ on the whole Catholic visible church, and to every part of it, and any real derivation of power from one part of the Catholic church by ascension or descension is not to be dreamed of here.” (Samuel Rutherford, The Due Right of Presbyteries, pgs. 384-385)

Presbyterians put forth the following arguments against this position of the Independents:

Arg. 1: It is manifest from Scriptural teaching that there are rulers and leaders in the church, and some who are ruled and led:

“Obey your leaders and submit to them, for they are keeping watch over your souls, as those who will have to give an account.” (Hebrews 13:17)

“We ask you, brothers, to respect those who labor among you and are over you in the Lord and admonish you.” (1 Thessalonians 5:12)

But if church rule formally presides in the congregation, who then actually rules? How is this biblical distinction between the rulers and those who are ruled, preserved? Some Congregationalist divines responded by simply distinguishing the power of church government which is in the congregation, and the actual exercise of it by church officers (see 2 Cor. 10:8). 

The English Presbyterians distinguished between the donation of power and the designation of power to particular persons (Jus Divinum Regiminis Ecclesiastici, Part 2, ch. 10, sec. 1). The latter can be said to belong to the congregation in the election of officers. These divines also appeals to 2 Cor. 10:8 as proof for church-officers being the immediate formal subject of ecclesiastical power:

“For though I should boast somewhat more of our authority, which the Lord hath given us for edification, and not for your destruction, I should not be ashamed.” (2 Corinthians 10:8, see also 13:10)

From this text we may deduce that church power is given to this end, namely the actual exercise of it in edification. Since not all church members exercise this power, it does not formally reside in them as the proper subject thereof. 

Arg. 2: When Christ gave this power to the congregation, was this as the church to be constituted (at the first growth and beginnings of the New Testament church) or was it as the church was established and constituted under the ministry of the Apostles? If the former, then the Apostles would have derived their authority from the congregation (which is absurd). If the latter, then where is it given to them in Scripture?

Arg. 3: If the whole community of the faithful are the proper subject of ecclesiastical power, then they may be properly called “church-governors.” But this would be absurd, since Scripture expressly distinguishes church officers from the congregation. Furthermore, under this view women and children would govern the church. 

Obj: What concerns all ought to be done with the consent of all. Therefore, the congregation ought to have a role of jurisdiction in things such as synods, excommunication, and ordination.

Resp: The consent of all is not the same as the exercise of jurisdiction by all. George Gillespie describes Presbyterian polity as including the consent of the congregation in acts of the presbytery such as excommunication. In Acts 15:6 (and 16:4), it is evident that the apostles and elders alone judged and made a determination concerning the controversy present before them. 

“Now, if the authors of that Confession thought the Christian liberty of a congregation sufficiently preserved when the pastor or pastors thereof do manage the weighty ecclesiastical affairs and government, with the knowledge, and (at least tacit) consent of the congregation itself, then do we not only sufficiently and abundantly preserve the liberty of the congregation, while as not the pastor or pastors thereof alone, but sundry ruling elders, also representing the congregation, do manage the affairs aforesaid, the congregation withal understanding thereof and consenting thereto, tacitly if not expressly.” (George Gillespie, An Assertion of the Government of the Church of Scotland [Edinburgh: James Bryson, 1641], pgs. 119-120) 

Gillespie also concedes that if the congregation does not approve of the excommunication of a particular person, then the elders should not proceed with it. 

Whether or not the congregation is present in the act of excommunication does not prove that they have a judicial church-authority to execute it. The priests cast out King Uzziah when he was a leper without consulting the people (2 Chronicles 26:20), and the priests had the judicial authority against those who were disobedient (Deuteronomy 17:13). 

Arg. 4 - The Congregationalist view of the church-power of the keys would overthrow the mode and method of excommunication as seen in Matthew 18. For the Independents teach that a congregation even without officers nonetheless formally possesses ecclesiastical authority (which must include the power to discipline). By way of analogy, say we have twenty local independent Congregationalist churches each consisting of only 3 believers. If one individual Christian in one of those 20 churches has a grievance against an offending brother, he would first correct him in private (Matt. 18:15), then tell it to two or three witnesses (v. 16). What is crucial for this argument here is that if the offending member continues impenitent, then where should the offended party appeal to? They have already appealed to two or three witnesses, so the next step would be to Tell the Church (v. 17). However, this cannot mean the two or three believers constituting one of the 20 churches mentioned previously, otherwise the steps of Matthew 18 would be rendered redundant (he would appeal to the two or three, and then proceed to tell that “whole church”, which consists of only two or three). He also cannot appeal to one of the other 20 churches, since they believe that each congregation is independent and cannot exercise authority over another. Thus, they have no normative way to follow Christ’s command to “Tell the Church.”

Arg. 5 - “The power of the keys is either in the officers as officers, or only as believers; if as officers, then they cannot borrow the keys from believers, seeing they have them as officers, suppose they be not believers, and that is against the meaning of this distinction; if they have the power of the keys only as believers, then all Ministers that are non-believers want the keys.” (Samuel Rutherford, A Peaceable and Temperate Plea for Paul’s Presbytery in Scotland [London: John Bartlet, 1642], pg. 61)

Arg. 6 - If the congregation has the power of the keys, then women and children would rule over the church.

Congregationalist response: “The answer is, first, when it is said the keys are given to a believer, it is to be understood not reduplicative, as if only and to all such all sorts of the keys are given ; but extensive, that is, to Peter, as representing believers also, and not barely as an apostle, but yet such believers as after should be more specially determined to have their share in them. For they are given unto believers, in Peter representing such, according to Christ's disposement, later to be declared. It is an indefinite charter, to be formed up by him afterwards, only now declaring that those of that sort should have them. And Christ hath afterwards made a peculiar exception of women not to speak nor to usurp authority in the church, 1 Cor. xiv. 34 ; which being an exception, it must be from a rule, and so, firmat regulam, argues and confirms that the rule is, that males have liberty and power to speak and judge in some cases.” (Thomas Goodwin, The Government and Order of the Churches of Christ, Book 2, ch. 2, in The Works of Thomas Goodwin 11:58)

Arg. 6 - “For that end doth the Lord appoint Elders in every church, and a ruler in a City, a King in a Kingdom, to govern them, to feed the flock [Acts 20:28]. Ergo, before there are Officers in a Church, there is no government in it.” (Samuel Rutherford, The Due Right of Presbyteries, pg. 180)

Arg. 7 - God has not given the power of the Keys to those who are not able to exercise them (cf. 1 Cor. 4:1-2). The congregation may not publicly preach, baptize, or administer the Lord’s Supper. Ergo, they do not have the keys.

Arg. 8 - “Well then, the Apostles when they received the keys they did represent the people: but what people? Not the people of a classical presbytery, of a Province, of a Nation, of the whole redeemed Church, but of one single congregation; how shall this be made out of the Text, or out of one Word of God, I see not.” (Samuel Rutherford, The Due Right of Presbyteries, pg. 290)

None of this is to say that Presbyterians denied any power to congregations:

“We acknowledge that a Congregation may exercise all jurisdiction in re propria; but excommunication, where Churches are consociated, is not a thing that is proper to a Congregation, but concerneth many.” (Samuel Rutherford, The Due Right of Presbyteries, pg. 320)

George Gillespie said “I should grant it where there is one single congregation & no more, then that congregation may ordain.” (Session 215, May 9, 1644, in Minutes and Papers of the Westminster Assembly, 3:70)

“If we regard the order of operation; The Congregation is primum movens, and primum operans, for all the motions of the Catholick-Church beginneth at the inferior wheels and at the lower spikes, if a general council be to enact any thing, motions must begin at the single Congregation at Antioch, at Jerusalem, and from thence ascend to a Presbytery, and from thence a national Church is to send their Commissioners to act in a Catholic council, though if we look to the power itself, it is intrinsically in the whole and in every part of the Catholic church.” (Samuel Rutherford, The Due Right of Presbyteries, pg. 384)

“It cannot be denied that there exists in a congregation of the faithful a virtual power, though not a formal one, to supply the lack of ordination through a popular election in cases of necessity. This may occur if a congregation of the faithful is on an island remote from all pastors. 1. For if David, without any revelation from heaven, ate the showbread in extreme necessity (since all positive law yields to natural law), then the faithful deprived of pastors may choose pastors for themselves” (Samuel Rutherford, Examination of Arminianism [Utrecht: ex Office A. Smytegelt bibl., 1668], pg. 646)

National Days of Prayer and Thanksgiving and Congressional Chaplains

 

As relations between Great Britain and the American colonies declined in the years leading up to the Revolutionary War, we have several concrete examples of days appointed by American governments for prayer, fasting, and thanksgiving. 

Thomas Jefferson records that he, along with Patrick Henry and Richard Henry Lee, "were under conviction of the necessity of arousing our people from the lethargy into which they had fallen as to passing events; and thought that the appointment of a day of general fasting and prayer would be most likely to call up and alarm their attention." (The Writings of Thomas Jefferson, ed. P.L. Ford [New York: G.P. Putnam’s Sons, 1892-1899], 1:9). Other states followed this similar example. The provisional congress of South Carolina set aside Feb. 17, 1775 for fasting and prayer, Maryland appointed May 11, and Georgia followed this trend in July 1775 (Derek H. Davis, Religion and the Continental Congress, pg. 84). 

November 1, 1777 - The Continental Congress appoints a committee with Samuel Adams, Richard Henry Lee, and Daniel Roberdeau to write a resolution to the states which called for a day of thanksgiving. It directly references the Lord Jesus: “It is therefore recommended to the legislative or executive powers of these United States, to set apart Thursday, the eighteenth day of December next, for solemn thanksgiving and praise; that with one heart and one voice the good people may express the grateful feelings of their hearts, and consecrate themselves to the service of their divine benefactor; and that together with their sincere acknowledgements and offerings, they may join the penitent confession of their manifold sins, whereby they had forfeited every favor, and their humble and earnest supplication that it may please God, through the merits of Jesus Christ, mercifully to forgive and blot them out of remembrance; that it may please him graciously to afford his blessing on the government of these states respectively, and prosper the public council of the whole;” (Journals of the Continental Congress, 9:854-855)

September 25, 1789 - Elias Boudinot proposes to establish a day of thanksgiving and prayer to God for His grace in establishing the American government and the Constitution. Though met with some opposition from Thomas Tucker, his motion was carried in the affirmative by the House (Annals of Congress, 1:914-915) and agreed to by the Senate (Documentary History of the First Federal Congress, 1:192). 

October 3, 1789 - President George Washington issues a Thanksgiving Proclamation (The Writings of George Washington, from the Original Manuscript Sources, 1745-1799, ed. John C. Fitzpatrick [Washington, D.C.: GPO, 1939], 30:427-428). As relations between Great Britain and the American colonies declined in the years leading up to the Revolutionary War, we have several concrete examples of days appointed by American governments for prayer, fasting, and thanksgiving. 

Thomas Jefferson records that he, along with Patrick Henry and Richard Henry Lee, "were under conviction of the necessity of arousing our people from the lethargy into which they had fallen as to passing events; and thought that the appointment of a day of general fasting and prayer would be most likely to call up and alarm their attention." (The Writings of Thomas Jefferson, ed. P.L. Ford [New York: G.P. Putnam’s Sons, 1892-1899], 1:9). Other states followed this similar example. The provisional congress of South Carolina set aside Feb. 17, 1775 for fasting and prayer, Maryland appointed May 11, and Georgia followed this trend in July 1775 (Derek H. Davis, Religion and the Continental Congress, pg. 84). 

November 1, 1777 - The Continental Congress appoints a committee with Samuel Adams, Richard Henry Lee, and Daniel Roberdeau to write a resolution to the states which called for a day of thanksgiving. It directly references the Lord Jesus: “It is therefore recommended to the legislative or executive powers of these United States, to set apart Thursday, the eighteenth day of December next, for solemn thanksgiving and praise; that with one heart and one voice the good people may express the grateful feelings of their hearts, and consecrate themselves to the service of their divine benefactor; and that together with their sincere acknowledgements and offerings, they may join the penitent confession of their manifold sins, whereby they had forfeited every favor, and their humble and earnest supplication that it may please God, through the merits of Jesus Christ, mercifully to forgive and blot them out of remembrance; that it may please him graciously to afford his blessing on the government of these states respectively, and prosper the public council of the whole;” (Journals of the Continental Congress, 9:854-855)

September 25, 1789 - Elias Boudinot proposes to establish a day of thanksgiving and prayer to God for His grace in establishing the American government and the Constitution. Though met with some opposition from Thomas Tucker, his motion was carried in the affirmative by the House (Annals of Congress, 1:914-915) and agreed to by the Senate (Documentary History of the First Federal Congress, 1:192). 

October 3, 1789 - President George Washington issues a Thanksgiving Proclamation (The Writings of George Washington, from the Original Manuscript Sources, 1745-1799, ed. John C. Fitzpatrick [Washington, D.C.: GPO, 1939], 30:427-428). 

Thomas Jefferson was against the federal government calling for days of fasting, prayer, or anything sort of religious exercise, and wanted it to be left to the states. He was aware that he was acting against the example of his predecessors in office:

“But it is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U.S. an authority over religious exercises which the Constitution has directly precluded them from. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion. And does the change in the nature of the penalty make the recommendation the less a law of conduct for those to whom it is directed? I do not believe it is for the interest of religion to invite the civil magistrate to direct it's exercises, its discipline, or its doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting & prayer are religious exercises. The enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, & the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it. I am aware that the practice of my predecessors may be quoted. But I have ever believed that the example of state executives led to the assumption of that authority by the general government, without due examination, which would have discovered that what might be a right in a state government, was a violation of that right when assumed by another. Be this as it may, every one must act according to the dictates of his own reason, & mine tells me that civil powers alone have been given to the President of the US. and no authority to direct the religious exercises of his constituents.” (Thomas Jefferson, “Letter to Rev. Samuel Miller,” January 23, 1808 in The Works of Thomas Jefferson, 11:8-9)

Thomas Jefferson was against the federal government calling for days of fasting, prayer, or anything sort of religious exercise, and wanted it to be left to the states. He was aware that he was acting against the example of his predecessors in office:

“But it is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U.S. an authority over religious exercises which the Constitution has directly precluded them from. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion. And does the change in the nature of the penalty make the recommendation the less a law of conduct for those to whom it is directed? I do not believe it is for the interest of religion to invite the civil magistrate to direct it's exercises, its discipline, or its doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting & prayer are religious exercises. The enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, & the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it. I am aware that the practice of my predecessors may be quoted. But I have ever believed that the example of state executives led to the assumption of that authority by the general government, without due examination, which would have discovered that what might be a right in a state government, was a violation of that right when assumed by another. Be this as it may, every one must act according to the dictates of his own reason, & mine tells me that civil powers alone have been given to the President of the US. and no authority to direct the religious exercises of his constituents.” (Thomas Jefferson, “Letter to Rev. Samuel Miller,” January 23, 1808 in The Works of Thomas Jefferson, 11:8-9)

Congressional Chaplains

April 15, 1789: Congress appoints two congressional chaplains to serve in the House and Senate respectively (Annals of Congress, 1:19). 

During George Washington’s presidential inauguration in 1789, there was a divine service held at St. Paul’s Chapel, attended by Washington, the Vice-President, and the members of both houses of Congress. Here is the text from the proceedings of the first federal Congress:

“Resolved, That this House doth concur with the Senate in the said resolution, amended to read as followeth, to wit: ‘That, after the oath shall have been administered to the President, the Vice President, and members of the Senate, the Speaker and members of the House of Representatives, will accompany him to St. Paul’s Chapel, to hear divine service, performed by the Chaplain of Congress.” (April 27, 1789, in Journal of the First Session of the Senate of the United States of America [Washington: Gales & Seaton, 1820], 1:24)

March 3, 1791: The first federal Congress enacted a law approved by the Senate and authorized by President Washington which provided for the funding of military chaplains (The Public Statutes at Large of the United States of America, ed. Richard Peters [Boston: Charles C. Little & James Brown, 1845], 1:222).