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Religious Freedom as a Legal Right
Page 37
(Continued from page 20)
credit of the adoption of the princi
ple. It is interesting, too, to note that
though the constituional provision did
not prohibit assessments for the sup
port of ministers of a particular
church, all movements for such pur
poses were strenuously and success
fully combated by Jefferson and Mad
ison.
Victory in Virginia acquired particu
lar importance because other colonies
or States were about to adopt consti
tutions for their governance, and could
hardly fail to be influenced by the ac
tion of the Virginia convention. The
issue, whether political freedom by its
nature, includes religious freedom could
not be evaded. In each State the ques
tion must be met and decided one way
or the other.
The Pennsylvania constitution was
adopted September 28, 1776. It con
tained the provision, “That all men
have a natural and inalienable right
to worship God according to the dic
tates of their own consciences and
understanding, and that no man ought
or of right can be compelled to attend
any religious worship or erect or sup
port any place of worship or maintain
any ministry, contrary to and against
his own free will and consent; nor can
any man who acknowledges the being
of a God be justly deprived of any
civil right as a citizen on account of
his religious sentiments or peculiar
mode of religious worship, and that no
authority can or ought to be vested in
or assumed by any power that shall
in any case interfere with or in any
manner control the right of conscience
in the free exercise of religious wor
ship.” In some respects this provision
goes further and is more definite than
the provision in the Virginia conven
tion. It does not, however, admit the
right of a citizen to deny conscien
tiously “the existence of a God”, and
it is unfortunately, to some degree,
vitiated by inclusion in the constitu
tion of a provision for a test for public
office, “That each member of the
House of Representatives before tak
ing his seat shall make and subscrbie
the following declaration: “I do be
lieve in one God, the Creator and gov
ernor of the universe, the rewarder
of the good and punisher of the
wicked, and I do acknowledge the
Scriptures of the Old and New Testa
ment, to be given by Divine Inspira
tion. And no further or other religious
test shall ever hereafter be required
of any civil officer or magistrate m
this State. Franklin presided at this
convention and, as might be supposed,
he disapproved of the provision of a
test for office, but accepted it upon
the practical consideration that it might
prevent others in the future from im
posing a broader test.
1 he limits of this paper preclude re
cital of the proceedings of the consti
tutional convention in each State. The
constitutional convention, held in New
Tork in 1777, however, should not be
entirely omitted. The original draft of
the provision for religious freedom,
prepared by a committee, of which
John Jay, William Duer, Gouverneur
Morris, Robert R. Livingston, and
Abraham Yates were members, con
tained the phrase that “free toleration
he forever allowed”. Before adoption
by the convention it was changed as
in Virginia, to “free exercise and en
joyment of religious profession and
worship”. Originally this was offered
“to all denominations of Christians,
without preference or distinctino, and
to all Jews, Turks, and Infidels”, sub
ject to limitation where the legislature
might determine particular doctrine
“incompatible with and repugnant to
the peace, safety, and welfare of civil
society in general and of this State
in particular”.
This provision was amended in the
committee itself in most liberal spirit,
but the debates in the convention
evinced a spirit of doubt as to the
doctrines of the Roman Catholic
Church on the part of some sections of
the State and some members, which
is even now not entirely dead. John
Jay himself proposed an amendment
that, to the general provision for re
ligious freedom, an exception should
be inserted that "professors of the re
ligion of the Church of Rome” should
not be permitted to “hold lands in or
be admitted to a participation of the
civil rights enjoyed by the members
of this State, until such time as the
said professors shall appear in the Su
preme Court of this State, and there
most solemnly swear that they verily
believe in their consciences that no
Pope, priest, or foreign authority on
earth hath power to absolve the sub
jects of this State from their alle
giance to the same. And further that
they renounce and believe to be false
and wicked the dangerous and damn
able doctrine that the Pope or any
other earthly authority have power to
absolve men from sins described in
and prohibited by the Holy Gospel of
Jesus Christ, and particularly that no
Pope, priest, or foreign authority on
earth has power to absolve them from
the obligation of their oath .
Perhaps it would be wrong to give
too much significance to Jay’s atti
tude. His Huguenot ancestry naturally
tended to prejudice him against the
Catholics. His English traditions lead
him to justify the then prevailing Eng
lish practice of Catholic persecution.
Moreover, as years went on he appar-
(Continued on page 51)
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