Below is the OCR text representation for this newspapers page.

-HE Southern Israelite Page 13 O o ['he Background of Constitutional Liberty As It Was Established by the Founders of the Nation By HON. IRVING LEHMAN Associate Justice of the Court of Appeals of New York When t lu* Congressional representa- (1V)> . ;in* thirteen colonies issued the Iitrhiniti*in of Independence, they be- {!„.[)• (‘Xplanation of the causes impelled the people of the eolo- t,, separate from tin* mother coim- , the words now so familiar , "We hold these truths to be M .|f..evident— that all men are created that they are endowed by their i i.ir u ith certain inalienable rights; :imi<>nthese are lift*, liberty, and tin* pursuit of happiness. That to se- ,urr the-e rights governments are in itiat'd among men, deriving their just power* from the consent of the gov erned." Not always had such doctrines been •anled as “self-evident truths”. Their gen eral acceptance was, indeed, the triumph of the political thought and philosophy of the eight eenth century. Like other political dogma, they had influenced tin* minds of individual states men, hut governments had been asserted and exercised, without regard to moral political theories. Rights were secured by governments when those who claimed the rights had power or influence sufficient to direct governmental action. When the colonies asserted their freedom they were called upon to form new govern ment'. Political dogma which was accepted as 't*If evident truth naturally to a great extent -aided the deliberations of the bodies chosen to create the machinery of the new govern ment*. On May (5, 177(5, almost two months before tin* Declaration of Independence was adopted, a constitutional convention assembled hi \\ illiamsburg, Va., to frame a form of gov ernment for the new State. Representatives of da people met to confer delegated power upon the trustees of the people, to displace a charter -ranted at least theoretically by royal grace. (, n -Iline 12, 177(5, the Constitutional Conven tion adopted a bill of rights under the title 'd A Declaration of Rights made by the Rep- rc'entatives of the good people of Virginia t"enihied in full and free convention, which ' do pertain to them and their posterity !| e basis and foundation of government”, ’'tit utes a statement in dogmatic form of md theories so much discussed during the 'iiith century concerning the Rights of -Wit and Man’s Relation to the State, but mli that statement these theories were ‘'luted into the fundamental law, the basis '■ government of the new State. “ the Declaration of Independ- begins with the assertion “That 11 ui'e by nature equally free and '“lent and have certain inherent ot which as they enter into a °t society, they cannot by any " t deprive or divest their pos- • namely, the enjoyment of life »erty, with the means of aequir- operty and pursuing happiness ■' !e fy”. It then continues with ords: “That all power is vested consequently derived from, the ;e: that the Magistrates are their trustees and servants, and at all times amenable to them. That government is, or ought to be. instituted for the common benefit, protection, and se curity of the people, nation, or com munity.” After a recital of the gen eral principles which should determine the form of government most suitable for this purpose, the Bill of Bights enumerates those rights which are “in herent” or “inalienable”. Included in those rights is the right to religious freedom. In accordance with the Bill of Rights, the government of the new State was formed by the adoption of according to Anglo-Saxon traditions, rights which by the same traditions were protected by the courts. For the tirst time, however, religious liberty is included in an enumeration of po litical rights; for the first time in all history has the Stall* recognized and provided by organic law that even the State might not interfere with reli gious liberty. Students of our history have fre quently noted that, although the colo nic* were in large part settled by men who sought here the opportunity to worship according to their own con- Jutticc Irving Lehman, member of the Permanent Com mission on Better Understanding, has here eloquently discussed the constitutional establishments of religious liberties in the thirteen original colonies. A draft of this ha her uvs read by hint at the April meeting of the Judaeans. Justice Lehman is a revered member of the Nezv York bench. «»t rii; the “Constitution or Form of Govern ment” on the fifth day of July, 1776. The Constitution and Bill of Rights of the Virginia convention is prob- ablv the first written instrument cre ating a government which in terms emanates from the People, and which at the same time as it creates the government protects the fundamental rights of the People from encroaching by the State. As might he expected, the enumeration of such fundamental rights embraces those rights which con stitute the essence of political h ier \ science, for the most part where the adherents of any sect constituted a considerable majority of the popula tion, they were tolerant of difference of religious opinion. They had made sacrifices to maintain the truth as they saw it. They could not recognize the right of others to maintain the con trary. They regarded as ordained the perdition in the world to come of those who differed with them here; they felt justified in persecuting or at least in placing disabilities upon those who, in their opinion, were in verse and stubbon in the wrong. Here and there, it is true, a high measure of religious freedom was achieved. Roger Williams, in advance of his time, perceived that the State should not interfere in matters of con science. The settlers of Providence were required to sign a covenant: “We whose names are hereunder written, being desirous of to inhabit in the town of Providence do promise to submit ourselves in active and passive obedience to all such orders or agree ments as shall he made for public good of the body in an orderly way by the major consent of the present inhabitants, masters of families incorporated together into a township, and such others as they shall admit into the same onlg in civil things." He succeeded in obtaining a charter for Rhode Island and Providence Plantations with the provision that "No person within the said colony at any time hereafter shall he in any wise molested, punished, or disquited or railed in question for any differences in opinion in matters of religion who do not actually disturb the civil pence of our said colony,” and in 1 <547 the first General Assembly adopted a code of laws which concluded with the words, “All men may walk as their consciences per suade them, every one in the name of God.” The charters of Maryland and Pennsylvania, too, contained provisions safeguarding liberty of conscience, though not in all respects ns comprehensive. Even in these colonies, however, old religious prejudices and religious convictions that were too strong to admit of difference of opinion to some extent thwarted the intentions of the founders, and liberal provisions of laws and charters were at times applied in grudging and narrow spirit. In general, it may lie said that where the adherents of a particular reli gion acquired religion, they established a church and placed disabilities upon and persecuted those who refused to accept the tenets of that church. Even so, the eighteenth century marked a great growth of toleration in the American colonies. Not only change in political phi losophy but other circumstances contributed to this result. Cong legations lists might establish their church in some of the States of New England, but they knew that in other colonies and in the mother country they were only tol erated. Where there was an estali- lished church there were yet substan tial minorities of inhabitants who re fused to conform. The spirit of pio neers, the conditions of a new country, tended to render oppression of min orities inconvenient if not im possible. Moreover, a strong community of interest in any group naturally tends to diminish the emphasis placed upon differences of opinion in regard to other matters, and intercourse tends to reduce misunderstanding and to destroy tolerence (font, on page 20)