Seth Barrett Tillman, National University of Ireland, Maynooth, has published A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, North Carolina Historical Review 98 (January 2021): 1-41. Here’s the abstract from SSRN:
During 1776, but prior to announcing the Declaration of Independence, the Continental Congress instructed the state legislatures to call conventions to draft constitutions to regularize their local state governments so that each could be administered in the name of the People and absent royal governors and royal officers. North Carolina heeded the revolutionary call—in 1776, it implemented a new constitution with a bill of rights. One interesting feature of the 1776 North Carolina Constitution was that Article 32 imposed a religious test. Article 32 stated:--Dan Ernst
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 Testaments, 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 this State.
Article 32’s religious test extended to four categories of persons. It extended to atheists, that is, those “who . . . deny the being of God.” It extended to non-Protestants, that is, those “who . . . deny . . . the truth of the Protestant religion.” It extended to non-Christians, that is, those “who . . . deny . . . the divine authority either of the Old or New Testaments.” And finally, it applied to an amorphous category of persons, that is, those “who . . . hold religious principles incompatible with the freedom and safety of the State.” A person falling in any of these four categories was not “capable of holding any office or place of trust or profit in the civil department within this State.” What the scope of this latter language is has been a matter of debate.
This particular provision would remain on the books, and largely unenforced, until North Carolina revisited this issue during the 1835 North Carolina Constitutional Convention—which drafted proposed amendments, subsequently ratified by the People, to the 1776 North Carolina Constitution. Still, in 1809, there was one (apparent) attempt to enforce the religious test provision.
In 1809, Jacob Henry was elected and qualified for a second annual term in North Carolina’s lower legislative house: the House of Commons. Henry was Jewish. On December 5, 1809, another member, Hugh C. Mills, put forward a motion to declare Henry’s seat vacant based on the 1776 North Carolina Constitution’s religious test. The next day, the Commons adjudicated the motion, and the motion failed. Henry kept his seat.
The modern, postbellum tertiary literature relating to the 1809 motion to vacate Henry’s seat is largely based on an antebellum secondary literature: i.e., documents from the mid-1810s into the 1850s. Some of those early documents may have been part of the public debate surrounding reform of the 1776 North Carolina Constitution’s religious test, including debates on proposed amendments to reform or abolish Article 32 heard in the 1835 North Carolina Constitutional Convention. Some of those records carry good indicia of authenticity and reliability, as some of the 1835 participants had been part of the earlier 1809 drama. On the other hand, there is some reason to doubt the reliability of these records: they were created in light of debate surrounding ongoing political reform. Furthermore, these were not contemporaneous records—by 1835, when the state constitutional convention met, memories of 1809 might well have grown dim.
In this short paper, I intend to summarize the standard narrative handed down to us from the 1830s, to illustrate how that narrative has been misunderstood (at least in part) by historians and other academics in more modern times, along with problems in that narrative. Next, I will put forward newly found records from December 1809 and early 1810 offering a significantly different account of what happened on the floor of the Commons on December 5 and 6, 1809. Having done so, I offer some personal reflections in regard to the difficulties surrounding legal history, particularly where (as here) the underlying historical issues touch on our deeply held moral and political intuitions, about the good society, and our common historical past.
