CHAPTER V.

EPILOGUE.

Little more remains to be said on the history of Church and State in North Carolina. In 1774 the Assembly now calling itself a Provincial Congress, took charge of and controlled the government; but there is nothing in the proceedings of these Congresses disturbing the status quo. There were five Provincial Congresses. The first met in Newbern in August, 1774. The fifth met in Halifax in November, 1776. This Congress adopted, on December 17, the Bill of Rights, and on the next day a State Constitution. These instruments contained the provisions for religious freedom which have been already mentioned. It now only remained for the laws of the new State to be brought into conformity with her new Constitution. The Established Church fell with its adoption. An ordinance was passed securing to the different churches such glebes, lands and tenements as they already possessed. Marriage was put on a new footing in 1778¹ by a law giving the privilege of performing the ceremony to all ministers alike. The terms of the affirmation for Quakers, Moravians, Mennonites, and Dunkards were fixed.² The law in regard to the care of the

orphan children of Quakers, passed in 1762, was repealed,¹ and with this repeal ecclesiastical laws disappear from our history.

But there was still another stage in the separation. There was no guarantee of religious freedom in the Federal Constitution as proposed to the States in 1787. The absence of this guarantee provoked so much criticism in no other State as in North Carolina. The leaders in this attack were the Rev. Henry Abbot, of Camden county, a Baptist minister, who had been a member of the second Halifax Convention in 1776, and who is said to have been the author of the clause of the Bill of Rights declaring for religious freedom,¹ Rev. David Caldwell, representative from Guilford, the most distinguished Presbyterian divine in the State, and Gen. William Lenoir, one of the heroes of ’76.

Abbot said some were afraid that under this new constitution they might be deprived of the privilege of worshiping

God according to their conscience. Would their liberties be secure, or would the general government make laws infringing these liberties? It was feared that the authority which had the treaty-making power might enter into an engagement to adopt the Roman Catholic religion, which would prevent the people from worshiping God according to their own consciences. If there is to be an Establishment, what shall be its form? As there are no religious tests, pagans, deists and Mahometans might obtain office, and senators and representatives might all be pagans. By whom were men to swear?—by Jupiter, Juno, Minerva, Proserpine [sic], or Pluto?¹

To these arguments, James Iredell, later a justice of the Supreme Court of the United States, replied. He recognized the evils of religious persecutions. The purpose of the convention was to establish a general religious liberty. Congress has no authority to interfere in the establishment of any religion whatsoever; if there is a religious test, how is it possible to exclude any set of men without taking away that principle of religious freedom which we ourselves so warmly contend for? He had just seen in a pamphlet that the Pope of Rome might become president;² there was no provision against such an emergency, nor was there one against one of the kings of Europe; one would be as rational and judicious as the other.

Gov. Samuel Johnston said a Jew, a Mahometan or a pagan could get office only in one of two ways: either the American people would have to lay aside the Christian religion altogether, or such persons would have to acquire confidence and esteem by good conduct and the practice of virtue.

Dr. Caldwell thought the absence of the test was an invitation to Jews and pagans of every kind, and that these might endanger the character of the United States.

Judge Samuel Spencer replied that he was in favor of religious liberty in particular; no one particular religion should be established; religious tests have been the foundation of persecution in all countries; they keep good men out of office, not bad ones; is it reasonable to suppose that men would be chosen without regard to their characters?

Gen. Lenoir said that there was no provision against infringement of the rights of conscience; that ecclesiastical courts might be established which would be destructive to our citizens; these courts might make any establishment they thought proper.

Mr. R. D. Spaight denied that the power to establish ecclesiastical courts was given to Congress.

Mr. William Lancaster said that a test would secure religion, and that religious liberty ought to be provided for. But let us remember that we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it. I see nothing against it.”¹

The Federalists, under the leadership of Iredell, Davie, Maclaine, Johnston, and Spaight, made a gallant fight for the adoption of the Constitution; but the lack of a Bill of Rights, and a guarantee of religious freedom, and the strong centralizing tendency of the instrument were too much for them, and the Convention resolved “neither to ratify nor to reject the Constitution,” but “that a declaration of rights, asserting and securing from encroachment the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said Constitution of government, ought to be laid before Congress and the convention

of the States that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid on the part of the State of North Carolina.”

In accord with this program, a declaration of rights, consisting of twenty articles, the last of which declares for “an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience,” and twenty-six amendments to the Constitution itself were recommended to the States for adoption.¹

North Carolina was therefore unrepresented in the extra session of the first Congress. This session took up the question of amendments, and twelve were proposed to the States. One of these, now standing as the first, provided that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These amendments covered the vital principles for which North Carolina had been striving. It became evident that they would be adopted, for the same features had been emphasized by Virginia, New Hampshire, and New York, and North Carolina adopted the Federal Constitution without debate in convention at Fayetteville, November 21, 1789.

There remains but one thing more. The thirty-second section of the Constitution of 1776 read: “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 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”²

It was never possible to arrive at any uniformity of belief as to the parties intended. Judge Gaston summarized the state of belief in his great debate in the Convention of 1835 as follows: “One [of the previous speakers] informs us that it excludes nobody—that it cannot be interpreted to exclude anybody that, for want of a tribunal to enforce and expound it, the entire provision is a dead letter, as if it had never been embodied in the instrument. Another thinks that it clearly excludes atheists and such deists as make a parade of their infidelity, by proclaiming the Holy Scriptures to be false. A third believes that it disqualifies atheists, deists, and Jews—for that the latter necessarily deny the divine authority of the New Testament, and deists deny the divine authority both of the New and Old Testament. A fourth supposes that these are excluded, and that it was intended also to exclude Catholics, but that the language is not sufficiently explicit to warrant a judicial exposition to that effect. A fifth holds that it was not only intended to exclude, but, by a legal construction, does exclude them. A sixth is satisfied that Quakers, Mennonites, and Dunkards are disqualified, because their doctrine, that arms cannot lawfully be used in defense of the country, is subversive of its very freedom and repugnant to its safety. Some think it will be a matter of fact for a jury to determine others, a matter of law, for a court, to pronounce what religious principles are incompatible with the freedom and safety of the State-while not a few are inclined

to hold that the Legislature may, in this respect, define what the Constitution has left vague and uncertain.”¹

The clause had probably been aimed at Roman Catholics. But it had never been interpreted against them. Thomas Burke, who “publicly professed and openly avowed the Catholic faith,” had been a member of the Continental Congress from North Carolina, and in 1781 had been elected governor of the State. Judge Toomer said that this clause was a declaration of principles, not a proscription of individuals; that infidels and Jews had been members of each branch of the General Assembly;² that votaries of the Romish Church had filled the highest executive, legislative and judicial stations in the State; that the construction of the section had been settled by the decisions of every department of the government and that this had been accepted by the people.³ Mr. Fisher said all offices had been filled by Catholics from governor down to constable.

The most distinguished of these Catholics was William Gaston, one of the best and purest men whom North Carolina has produced. He had been a member of the State Senate, he was Speaker of the House of Commons, he was a representative in Congress; but his right to hold these offices had never been questioned. In 1833 he was chosen

a justice of the Supreme Court by the Legislature. In a letter to Thomas P. Devereux he explains how he can hold office under this clause: The Constitution is based on the general principles of civil and religious liberty; therefore all citizens are competent to take and to hold office who are not clearly disqualified; it was in the power of the people to create penal incapacity, but persons must be unequivocally debarred before this can take effect; the only part of the Constitution that can be so interpreted is the thirty-second section; it is possible that some of the framers intended to exclude Catholics; but what is the Protestant religion? We have no establishment to determine the truth of that religion and pronounce on schism and heresy; this establishment is forbidden by the Constitution; the Constitution has not defined the Protestant religion, has not excluded Catholics or any other denomination eo nomine, and is therefore inefficient and unmeaning. Is a belief in the Catholic a denial of the truth of the doctrines of Protestants? Again, test laws and disqualifying enactments were familiar to England and her colonies; if this old system of proscription had been intended, can it be doubted that the intent would have been unequivocally manifested? Judge Gaston concluded that he was not disqualified and that he had “no right by any over-nice scruples to be instrumental in practically interpolating into that instrument an odious provision which it does not contain!”

Judge Gaston had assumed his seat on the supreme bench, and there had been no complaint; but it was thought best to amend the section when the matter came up for settlement in the constitutional convention. The debate on the section was long, but almost wholly in favor of amendment,² the opposition argument being based largely on the

fact that it was already dead. It was determined to substitute the word “Christian” for “Protestant,” and thus, in the eloquent words of Judge Gaston, was the carcass of this last remnant of religious persecution interred, “lest its pestilential effluvia should poison the atmosphere of Freedom.”