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.”