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]
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.”