2. The Political Crisis and Its Significance for the Proclamation of Religious Freedom of Conscience. The First Sounds of Freedom. The Revolution in the Views of Congress and Its Causes. New Constitutions and the Paragraph on Religious Freedom of Conscience. The Limitation of Civil Rights of Catholics. The Federal Constitution and the Abolition of the Religious Test. Discussions on This at Conventions. The Significance of the Paragraph in the Federal Constitution. The Separation of Church and State. (Cont.)

The general principle of freedom of religious conscience thus found more or less complete recognition in the private constitutions of the colonies, which had hitherto been intolerant. The country was experiencing such an important and dangerous political crisis that achieving unity required the harmonious contribution of all moral and physical forces, and therefore the people unanimously resolved to forget mutual disagreements over religious differences and placed them outside the nascent state organism, thereby dividing church and state. But however strong the political need for a complete equalization of the rights of religious conscience of the various confessions within the state, even stronger were the historically entrenched prejudices of confessions toward one another[1]. They could not suddenly give way to the new principle, and if they could not give way in the general principle, they continued to dominate in particulars, limiting the general principle of complete equality of religious rights. Prejudices made themselves known in the relations between the most extreme confessions – Protestantism and Catholicism, and since the former had actual predominance, it could not fail to reinforce it with legal predominance and various advantages. Those very same constitutions which, as shown above, seemed to incline so decisively toward the equalization of the rights of religious conscience, toward the exclusion of religious questions from the sphere of state authority, could not entirely free themselves from the spirit of religious intolerance, and in many of them it declared itself in the tendency to retain certain privileges exclusively for Protestants. This was especially evident in the definition of the eligibility of persons to hold public and state offices. Many constitutions determined this eligibility by the religious profession of individuals, with full advantage given to Protestants. Thus, the New Jersey Constitution quoted above, dated July 2, 1776, together with the declaration of complete freedom in matters of religion, contains a provision strongly colored by the Protestant spirit. It provides: “that no Protestant inhabitant of this colony shall have the enjoyment of civil rights denied to him solely because of his religious principles; but all persons professing the faith of any Protestant sect, who shall conduct themselves peaceably under the government here established, shall have the right to election to any profitable office or position of trust, or to be a member of any branch of the legislative assembly, and shall fully and freely enjoy every privilege and advantage enjoyed by their other fellow subjects”[2]. The constitution makes no mention of Catholics, but its meaning, granting civil rights and advantages “to all professing the Protestant faith,” clearly excludes Catholics from the sphere of these rights. Other constitutions state this even more clearly. The North Carolina Constitution of December 18, 1776, says: “that no person who shall deny the being of God, or the truths of Protestant religion, or the divine authority of either the Old or New Testament, or shall hold religious principles incompatible with the freedom and safety of the state, shall be eligible to hold any office or place, of trust or profit, in the civil department of this state”[3]. The Georgia Constitution of February 5, 1777, says that members of the legislative assembly “must be of the Protestant religion”[4]. The South Carolina Constitution of March 19, 1778, provides that “the Governor and Commander-in-Chief, Lieutenant Governor, and Privy Council – all must be of the Protestant religion”; that “no person shall be elected to sit in the House of Representatives unless he be of the Protestant religion”; and “that all confessions of Christian Protestants in this state, conducting themselves peaceably and loyally, shall enjoy equal religious and civil privileges.” In this same state the Governor took an oath “to the utmost of his power to uphold and defend the laws of God, the Protestant religion, and the liberty of America”[5]. The New Hampshire Constitution of January 5, 1776, while not directly determining civil eligibility by religious profession, implies the same by a provision maintaining the force of the former colonial law, by which all members of the legislative assembly were required to be of the Protestant religion[6]. This spirit of Protestant exclusivity toward Catholics declared itself with special force at the convention assembled to draft the Constitution of New York on April 20, 1777. The assembly proposed for discussion an article on freedom of religious profession and worship, which read: “the free toleration of religious profession and worship shall from now on be forever allowed to all mankind”[7]. This article met protest from a considerable number of convention members, and one of them, namely John Jay, who was later to be the first Chief Justice of the Supreme Court of the United States, proposed the following amendment to the article: “excepting those professing the religion of the Roman church, who should not hold land or be admitted to participation in the civil rights granted to members of this state, unless the said professing persons shall appear in the supreme court of the state and there take the most solemn oath that they truly believe in their conscience that no pope, priest, or foreign power on earth has power to absolve the subjects of this state from their obedience to it; and further that they reject and hold false and evil the dangerous and accursed doctrine that the pope or any other earthly power has power to absolve men from sins indicated and forbidden by the Holy Gospel of Jesus Christ, and in particular that no pope, priest, or foreign power on earth has power to absolve them from this oath.” This proposal provoked prolonged debate, and when put to a vote, 10 members voted in its favor, and it was rejected by the majority of 9 (19 against 10)[8]. Such was still the strength of the spirit of Protestant intolerance toward Catholics in the people. Of the thirteen colonies five made Protestantism the established religion. Of the remaining eight, five proclaimed complete freedom of religious profession, and three, namely Maryland, Delaware, and Pennsylvania, made the Christian religion generally established and conditioned the eligibility of persons to hold public offices upon it[9].

In 1787 a federal convention assembled, composed of representatives from all colonies, to draft a common constitution for the United States. The religious question was also presented for its resolution – the question of the relationship between religion and the state. This question was not new to the members of the federal convention, some of whom had been members of the congresses convened previously. On the contrary, they understood its full importance, and they saw the bitter lesson from its incorrect resolution in the loss to the common cause of the colonies of the great province of Canada. Therefore, the federal convention, by its very position and task having in view more general aims and a broader outlook, naturally had to take the religious question in its more general significance than it had been taken in the private conventions. The local conventions were composed of members from one colony, united with each other by their very existence together; meanwhile the federal convention was composed of representatives of colonies that had hitherto lived completely separate lives and had nothing in common with each other, so that the bond between them was still very weak and could break at the slightest disagreement. Therefore, it was an urgent necessity to remove every occasion for such disagreement. Meanwhile, an occasion existed. Catholics participated in the convention, and meanwhile in many states their civil rights were denied. As a result, the federal convention hastened to eliminate this inequality, and so it developed and unanimously adopted a provision which in its final form reads as follows: “No religious test shall ever be required as a qualification for holding any office or public trust in the United States”[10]. This article completely placed civil rights outside all dependence on religious profession and thus came into contradiction not only with those private constitutions which conditioned eligibility to hold public offices on Protestant profession, but also with those which made it dependent generally on the Christian religion. The private constitutions therefore had to undergo changes in accordance with the principle of the federal constitution. The debates which took place in the private conventions on the adoption of this article present important material for characterizing the views of the American people on the relationship of religion to the state and chiefly of Protestantism to Catholicism.

Footnotes

[1] The degree to which strong and entrenched was Protestant hostility to Catholicism is demonstrated by the remarkable fact that even during the very struggle for independence, the custom of publicly burning the pope’s effigy was observed. On November 5, 1775, Washington issued this order to the troops: “Learning of the intention to observe the ridiculous and childish custom of burning the pope’s effigy, the commander-in-chief cannot but express his astonishment that officers and soldiers in this army could be found so lacking in good sense as to not see the impropriety of such an action. It is so monstrous that it cannot be tolerated or excused. Instead of causing even the slightest offense, it is our duty to publicly thank our Catholic brothers, as it is to them we owe our final success over our common enemy in Canada.” Murray, History, p. 196.

[5] 3, 13 and 38 articles of the constitution of S. Carolina. C.W. p. 733. Inquiry, p. 80. The Constitution of South Carolina further made an interesting provision concerning what society can be considered religious and have a right to the benefits accorded religion. By this provision all religious societies, to have a right to the benefits accorded religion, had to adopt and sign in the book the following five articles: 1) that there exists one eternal God and there is a future state of reward and punishment; 2) that God should be publicly worshipped; 3) that the Christian religion is the true religion; 4) that the Holy Scripture of the Old and New Testaments is of Divine inspiration and is the rule of faith and life and 5) that the lawful duty and obligation of each person, called thereto by those who govern, is to bear witness to the truth. Inquiry into the Moral and Religious character of American Government, p. 81.

[9] The Constitution of Maryland from August 14, 1776 decrees that “a declaration of faith in the Christian religion” shall be a qualification for office; and that every person appointed to any office, profitable or of trust, before entering upon the discharge of the same, must sign a declaration of faith in the Christian religion (35 article Declaration of Rights and 55 article const.). The Constitution of Delaware from September 11, 1776 establishes the following oath, which had to be taken by all members of the legislative assembly: “I, A.B., profess faith in God the Father, and in Jesus Christ His Only-Begotten Son, and in the Holy Ghost, One God forever blessed; and I acknowledge that the Holy Scripture of the Old and New Testament is given by Divine inspiration” (22 article of constitution). The Constitution of Pennsylvania from September 28, 1776 required from members of the general assembly and civil officials the signature to “a declaration of faith in one God, Creator and Ruler of the world, Rewarder of the good and Punisher of the wicked,” as well as to make “acknowledgment that the writings of the Old and New Testament are given by Divine inspiration.” The Catholic World, vol. XXIII, p. 734. See The Constitutions of the Thirteen states, p. 141, 162; 114. Inquiry p. 80–83.