CHAPTER XV

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THE QUESTION OF RELIGIOUS LIBERTY IN VIRGINIA AND IN NORTH CAROLINA.

Little change in the basic systems of State institutions――Patrick Henry, Madison and Jefferson on religious liberty in Virginia―― The similarity between the Virginia statute and the conclusions of Moses Mendelssohn pointed out by Count Mirabeau――The first congregation of Richmond――Article 32 of the Constitution of North Carolina against Catholics, Jews, etc.――How Jacob Henry, a Jewish member of the Legislature, defended and retained his seat in 1809――Judge Gaston’s interpretation――The first congregation of Wilmington, N. C.――Final emancipation in 1868.

The provision in Article VI of the Constitution of the United States (§3) that “no religious test shall ever be required as a qualification to any office or public trust under the United States” settled the matter only as far as the National Government was concerned. Each of the independent and sovereign States could solve this problem in its own way, though most of them have already adopted full religious freedom. But it must be remembered that the basic institutions of the States were not directly changed by the Revolution, and in some of them they were not changed at all. In some instances Royal Charters remained, with some alterations, as State Constitutions; English common law remained in force even to this day, unless otherwise provided for by special enactment. The colonies were too free originally to require or desire a sudden radical change when they threw off the British yoke. They kept on progressing by the slow process of evolution, but not at an equal pace, each emphasizing the questions in which its inhabitants were mostly interested. Uniform or simultaneous action was not to be expected under such conditions.

Virginia, the State of Washington and of Jefferson, the “mother of presidents” and the home of the framers of the National Constitution, began to consider the question of religious liberty seriously soon after peace was declared. It was not a new question even then, for as early as 1776, when a new Constitution for the Commonwealth was drafted, there occurred a significant discussion about the difference between toleration and rights. The Declaration of Rights, reported by a committee of which Colonel Mason was chairman, contained a provision relative to religious liberty whose authorship is attributed to Patrick Henry (1736–99). It provided that all men should enjoy the fullest toleration in the exercise of religion. Madison strongly opposed the use of the word toleration, which recognized liberty of worship not as a right but as a favor granted to dissenting denominations. At his instance the provision was amended to read: “All men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

But even this was still far from actual separation of Church and State in Virginia. Even the annual assessments, which had been theretofore levied in favor of the Episcopal Church, were not abolished outright, they were simply suspended from year to year, until, at Jefferson’s instance, the grant was defeated in 1779. In that year he introduced a measure entitled “A bill for establishing religious freedom,” which, after two readings, was sent throughout the State to secure the sense of the people relative to it before taking final action at the next legislature. It was permitted to languish unacted upon for several years, and during that time an agitation was kept up against the spirit which it embodied. Various measures were suggested, about 1784, looking to establish Christianity in Virginia instead of any single Christian sect, as before the Revolution, and for securing governmental support to all Christian sects. The theory of the advocates of such measures was, that while there should be no actual persecution of non-Christian sects, the State ought to establish Christianity as the religion of the great majority of the people, and that the Revolution had evolved merely the principle that no single Christian sect should be preferred over any other. On November 11, 1784, a resolution drafted by Patrick Henry was reported to the Lower House of the Legislature, providing that “the people of the Commonwealth, according to their respective abilities, ought to pay a moderate tax or contribution for the support of the Christian religion, or of some Christian church denomination or communion....” In spite of Madison’s opposition, it was adopted by a vote of 47 to 32, and a special committee, of which Mr. Henry was chairman, was appointed to draft such a bill.[21]

It was clearly understood that this measure was intended to curtail the rights of Jewish and other non-Christian residents. Beverly Randolph, writing about this subject to James Monroe, says: “The only great point that has been discussed since the sitting of the Assembly has been a motion for a general assessment, upon more contracted ground than I could ever have expected. The generals on the opposite sides were Henry and Madison. The former advocated, with his usual art, the establishment of the Christian religion in exclusion of all other Denominations. By this I mean that Turks, Jews and Infidels were to contribute to the support of a religion whose truth they did not acknowledge. Madison displayed great learning and ingenuity, with all the powers of a close reasoner; but was unsuccessful in the event, having a majority against him. I am, however, inclined to think that the measure will not be adopted.... The supporters of this holy system will certainly split whenever they come to enter upon the minute arrangements of the business.”

“A bill establishing a provision for teachers of the Christian religion” was brought in December 23, 1784, and after it was amended, but without materially changing its substance, it passed its second reading. But on the next day (December 24) Madison was able to secure the passage of a resolution postponing the third reading till the following November, and copies of the bill were ordered to be printed and distributed in every county of the Commonwealth. The people were requested to signify their opinion respecting the adoption of such a measure to the next session of the legislature. An active and thorough discussion of the bill followed throughout the State. Madison prepared a “Memorial and Remonstrance” against the bill, which was extensively circulated and signed.

Madison made no mistake in suggesting this appeal to the people. When the Assembly met in October, 1785, the table of the House of Delegates almost sunk under the weight of the accumulated copies of the memorial against the bill which came from different counties, each with its long and dense columns of subscribers. The fate of the assessment was sealed. The manifestation of the public judgment was too unequivocal and overwhelming to leave the faintest hope to the friends of the measure, and it was abandoned without a struggle. The declaratory act for the establishment of religious liberty, which had been drawn by Jefferson as one of the committee of revisors and presented to the legislature in 1779, was then taken up and passed into a law. Madison’s “Memorial and Remonstrance” had cleared away every obstruction.

In a letter to Madison, dated December 16, 1786, Jefferson, who was then our Minister to France, wrote: “The Virginia Act for religious freedom has been received with infinite approbation in Europe, and ♦propagated with enthusiasm. I do not mean by the governments, but by the individuals who compose them. It has been translated into French and Italian, has been sent to most of the courts of Europe, and has been the best evidence of the falsehoods of those reports which stated us to be in anarchy. It is inserted in the new Encyclopædia, and is appearing in most of the publications respecting America. In fact, it is comfortable to see the standard of reason at length erected, after so many ages during which the human mind has been held in vassalage by kings, priests and nobles; and it is honorable for us to have produced the first legislature who had the courage to declare that the reason of men may be trusted with the formation of his own opinions.”

In the following year Count Mirabeau (1749–91) the most distinguished of the advocates of Jewish emancipation in France, calls attention in his essay _On Moses Mendelssohn and the Political Reform of the Jews_ (1787) to the striking similarity of the enactment of Virginia to the conclusions at which the Jewish philosopher of Berlin arrived by abstract reasoning; assuming that Mendelssohn never saw the preamble of the American law, which was drafted by Jefferson four years before the publication of “Jerusalem” in 1783. It is clear, however, that about seven years later, when the great French Revolution, which was influenced by the American Revolution much more than is commonly supposed, was in full swing, even the debates of the Constitutional Convention of Virginia of 1776 had become known to the friends of religious liberty in France. In the course of a petition in favor of their own emancipation, addressed by the French Jews to the National Assembly on January 29th, 1790, they said: “America, to which politics will owe so many useful lessons, has rejected the word toleration from its code, as a term tending to compromise individual liberty and to sacrifice certain classes of men to other classes. To tolerate is, in fact, to suffer that which you could, if you wish, prevent and prohibit.”

There were not many Jews in Virginia in the time when this momentous question was discussed and solved. Individual Jews are mentioned in the Seventeenth Century, but the first record of a congregation occurs in connection with the address to Washington, mentioned above (page 102), which was sent by the Hebrew congregations of Philadelphia, Richmond, New York and Charleston. The minute-book of the Congregation Bet Shalom of Richmond, Va., dates back to the year 1791, and it is assumed that the first or Sephardic congregation was organized in that year. The first place of worship was in a room of a three-story brick building on the west side of 19th street, between Franklin and Grace streets, where one of the members resided. It later moved to a small brick building, erected on the west side of 19th street in the rear of the Union Hotel, which then stood on the corner of Main street. After some years a lot was purchased from Dr. Adams on the east side of Mayo street, above Franklin street, on which a commodious synagogue was erected, in which the congregation worshipped for upwards of three-quarters of a century. The burial ground on Franklin street, near 21st street, which is now enclosed with a substantial granite wall, was conveyed by Isaiah Isaac to Jacob I. Cohen, Israel I. Cohen, David Isaac, Moses Mordecai, Jacob I. Cohen, Jr., Simon Gratz, Aaron Levy, Moses Jacob and Levy Myers, as trustees, on October 21st, 1791. It was used until about 1816, when Benjamin Wolfe, then a member of the Common Council of the City of Richmond, made application on behalf of the congregation for a new piece of ground, which was granted by an ordinance passed on the 20th day of May, giving for that purpose an acre of land belonging to the City of Richmond lying upon Shockoe Hill.[22]

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North Carolina, like Virginia, had an Established Church until a short time before the outbreak of the Revolution, all citizens being required to pay toward its support, and dissenting clergymen being denied the privilege of performing even the marriage ceremony. But when the Dissenters won their fight against the Establishment, they took an uncompromising stand against the complete emancipation of Roman Catholics, Jews and others not belonging to a Protestant denomination. The opposition to Jews was mainly theoretical or academic, as there were practically no Jews in North Carolina at that time. In happy contrast to some Old World countries of the present time, opposition to Jews in the United States developed only in parts of the country where they were least known. In all the original States which had considerable Jewish communities, like New York, Pennsylvania and Rhode Island, full religious liberty was firmly established before the adoption of the Federal Constitution.

Like Virginia, too, North Carolina adopted a Constitution in 1776. It provided for liberty of worship and even excluded clergymen from being members of the Senate, House of Commons or Council of State. But when it came to the question of holding office, an exception was incorporated in Article 32 which read as follows:

“That no person who shall deny the being of God or the truth of the Protestant religion or the Divine Authority, either of the Old or New Testament, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the Civil Department within the State.”

This article was doubtless aimed primarily at Roman Catholics: but the prohibition being a sweeping one, it necessarily included Jews, Quakers, Mohamedans, Deists, etc. While there was some opposition to the adoption of this section, it seems to have expressed the predominating opinion of the State on that point, for, as it was noted above (page 86), the delegates of North Carolina voted at the Federal Constitutional Convention of 1787 against the clause abolishing religious tests. The entire question was again discussed at the State Convention which was called in 1788 to ratify the Constitution of the United States, and the narrower view prevailed. The Convention resolved neither to ratify nor reject the Constitution, but that a Declaration of rights be laid before Congress and twenty-six amendments proposed. North Carolina was therefore unrepresented in the extra session of the first Congress which adopted the first amendment, “That Congress shall make no laws respecting the establishment of religion or prohibiting the free exercise thereof.” This amendment was partly a concession to that State, implying a guaranty that even should a Papist or a Mohamedan be elected President, he should not be able to force his religion on those unwilling to accept it. After its adoption, North Carolina adopted the Constitution, in November, 1789.

Despite all this prejudice, section 32 of the State Constitution soon came to be regarded a dead letter. As a matter of fact, a Catholic was elected Governor in 1781. It was not until 1809 that the whole subject again came prominently to the front in the case of Jacob Henry, a Jew, who was elected a member of the Legislature for Carteret County. He had served throughout the year 1808 and had apparently been re-elected for 1809, and then a fellow member asked to have his seat declared vacant on account of his faith.

Henry delivered a notable address in the Assembly in defense of his rights to his seat. It made a strong impression at that time, and was later republished as an example of fine composition in a work known as the _American Orator_.[23] He was permitted to retain his seat, but the principle at issue was rather avoided than settled. It was decided that the article prohibiting non-Protestants from holding office in any civil department of the State did not exclude such persons from serving in the Legislature, because the legislative office was above all civil offices. The view was more pointedly defined by saying that Catholics and Jews could make the laws, but could neither execute nor interpret them. Actually, however, both executive and judicial offices were held by non-Protestants, before and after that incident.

When a distinguished Roman Catholic, William Gaston (1778‒1844), was chosen Justice of the Supreme Court of North Carolina (1834) a doubt arose, even in his own mind, whether he could accept the office. But he resorted to an even more ingenious interpretation of the Constitution, which was subsequently followed in other cases as well. He argued that the word “deny” implied an overt act, and that “the Constitution does not prescribe the faith which entitles to or excludes from civil office, but demands from all those who hold office, that decent respect of the prevalent religion of the country which forbids them to impugn it, to declare it false, to arraign it as an imposition upon the credulity of the people.”

While the acceptance of this decision made it possible for every one to hold office, the efforts to abolish the religious test altogether did not cease. The question was again thoroughly debated at the Convention which came together in 1835 to amend the State Constitution. There were practically no Jews in the State even then, but some of the distinguished members of the Convention championed the cause of absolute religious liberty and worked for the abolition of the entire article which prescribed the test. Their efforts, however, were not successful, and the change which was adopted emancipated only the Catholics, by substituting the word “Christian” for “Protestant.”

The small Jewish Congregation of Wilmington, N. C., which was organized in 1852 for burial purposes, began about four years later to circulate a petition for the removal of the existing disability. A bill to that effect was introduced in the Legislature in the same year (1858), but the committee to which it was referred reported that while it considered the objectionable clause “a relic of bigotry and intolerance unfit to be associated in our fundamental law with the enlightened principle of representative government ... it is highly inexpedient to alter or amend the Constitution by legislative enactment in any

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When the Constitution of North Carolina was again changed by the Convention of 1861, which voted for secession and joined the Confederacy, the article in question was changed in phraseology only. The word “Christian” was omitted, but the clause still debarred from holding office a “person who shall deny the being of God or the Divine Authority of both the Old and the New Testament.” The convention of the period of reconstruction, which met in 1865, afforded no relief, but the Constitution which it framed was rejected by the people at the polls in the following year, though on other grounds. It was not until the Constitutional Convention of 1868 that Jewish emancipation was accomplished in North Carolina. The time was ripe for the abolition of all religious tests, and there appears to have been no debate on that point. Only “persons who shall deny the being of Almighty God” were, and still are, debarred from holding office in that State, as no change has been made in this regard since 1868.

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