Philip S. Foner wrote that Jacob Henry’s 1809 speech in his own defense “made a profound impression on progressive Americans by a brilliant reply to narrow-minded bigots.” Foner, The Jews in American History 1654–1865 (New York: International Publishers Co., Inc., 1945), 34, <https://tinyurl.com/y38nx6xx>. Similarly Attorney General Levi wrote: “In 1809 the North Carolina legislature unsuccessfully tried to exclude Jacob Henry, who, as a Jew, did not subscribe to the Divine authority of the New Testament as required by the state constitution.” The Honorable Edward H. Levi, “Bicentennial Address of the Attorney General at Touro Synagogue,” Rhode Island Jewish Historical Notes, 7 (November 1976): 320, 322, <https://tinyurl.com/t4v2ju3>. One notes Attorney General Levi’s hyperbole: it was not the legislature (as a whole) which was involved, but only the lower house, i.e., the North Carolina House of Commons, and the Commons did not “try” to exclude Henry, it was (as far as we know) only one member—Hugh C. Mills, from Rockingham County.
Is it just possible that Article XXXII’s religious test, in the 1776 state constitution, was not rooted in parochialism and bigotry directed against non-Protestants? North Carolina Const. of 1776, art. XXXII. One might consider Article XXXII’s constitutional neighbor, Article XXXI, which provided: “That no clergyman, or preacher of the gospels of any denomination, shall be capable of being a member of either the Senate, House of Commons, or Council of State, while he continues in the exercise of the pastoral function.” North Carolina Const. of 1776, art. XXXI. “In 1801 the Reverend John Culpepper and the Reverend William Taylor were declared ineligible and expelled from their seats in the State Senate. In 1820, the Reverend Crudup met the same fate.” James Michael Hurley, “The Political Status of Roman Catholics in North Carolina,” Records of the American Catholic Historical Society of Philadelphia, 38 (September 1927): 237, 271. What we see here is “the peculiar state of affairs [by modern sensibilities] into which political life in North Carolina had drifted.” Ibid. On the record we have, the only people who were actually expelled from the North Carolina legislature based on a religious test were three Protestant ministers. For this reason and others, we should consider the possibility that, in 1776, the higher purpose of Article XXXI and Article XXXII was not essentially exclusionary. Rather, the goal may have been simply to model the newly independent state of North Carolina’s revolutionary-era constitution as closely as possible on the extant British constitution, taking into account the loss of royal officers and different circumstances in the New World. This might explain why men like William Gaston (a Roman Catholic), although they opposed Article XXXII, did not feel aggrieved or moved by it in any strong or deeply personal sense. Compare William S. Powell, North Carolina Through Four Centuries (Chapel Hill, University of North Carolina Press, 1989), 275 (“[M]any able North Carolinians of the time, though not actually guilty of religious bigotry, had no quarrel with the provision.” (emphasis added)), with Henry G. Connor and Joseph B. Cheshire, Jr., The Constitution of the State of North Carolina Annotated (Raleigh: Edwards & Broughton Printing Company, 1911), xxvii (asserting that Article XXXII was an “attempt to discriminate against Christians, other than Protestants”), and Milton Ready, The Tar Heel State: A History of North Carolina (Columbia: University of South Carolina, 2005), 173, <https://tinyurl.com/y2o72lc4> (“At the heart of the issue lay the ancient animosity between Protestants and Catholics.”).
To put it another way, political disqualification—based on a religious test—is wholly un-American, as we now conceive American identity. But, the constitution of North Carolina, in 1776, with its House of Commons, and its two House members (elected county-wide) for each county (or “shire”?) and its separate representation in the House for each town (or “borough”), and its exclusion of the clergy from the Commons, was modelled, in part, on an older English identity (even if, perhaps, it was only an English-identity of the North Carolinian imagination). Ready, The Tar Heel State, 170 (describing the “borough franchise” as “an ancient English custom kept by North Carolina’s revolutionary founders”). Consider the participants in the Henry proceedings and the names of the counties they hailed from—see how many of these place names were connected with English and wider British transatlantic history: Anson, Carteret, Craven, Cumberland, Duplin (based on “Dublin”), Halifax, Martin, New Hanover, Onslow, Pitt, and Rockingham counties. Still, in North Carolina, in 1776, and even as late as 1809, the transition had not yet been completed from the older English identity to the political mores which we 21st-century Americans now take for granted.
Seth Barrett Tillman, Rethinking Our Past, New Reform Club (Oct. 22, 2020, 12:50 AM), <https://reformclub.blogspot.com/2020/10/rethinking-our-past.html>;
The passage above is from my forthcoming publication: Seth Barrett Tillman, 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, 98(1) North Carolina Historical Review (forth. circa Jan. 2021) (peer reviewed), <https://ssrn.com/abstract=3498217>.