John Jay Papers

Religious Toleration and the New York State Constitution Editorial Note

Religious Toleration and the New York State Constitution

The most controversial role John Jay played during the New York Convention’s debates over the New York State Constitution related to the proposed clause on religion. The draft report submitted to the convention provided for an unqualified “free toleration of religious profession and worship.” Such a policy was a marked departure from colonial practices. Pluralistic New York was remarkably tolerant with regard to various Protestant denominations, but particularly since the time of the Glorious Revolution and Leisler’s rebellion in 1689, both royal officials and provincial authorities, anxious for the security and preservation of Protestantism, had instituted numerous restrictions on Catholicism. All officials were bound to take the oaths specified by Britain’s Test Act, requiring them to deny the spiritual and temporal authority of the Catholic Church, as well as specific religious tenets such as transubstantiation and the veneration of the Virgin Mary and the saints. They also had to swear they had not received any special dispensation by the Pope absolving them from taking the oath in good conscience. This requirement was later extended to those wishing to become naturalized citizens. Subsequent conflicts between Britain and France compounded the suspicion of Catholics as residents with divided loyalties. Catholics were specifically denied the right to vote; Catholic clergy were banned. Royal governors arrived with instructions to “permit liberty of Conscience to all persons except Papists.” The antipapist rhetoric employed in the fight of William Livingston’s Whig Club against the introduction of an Anglican bishop into New York and the broader Patriot attack on the Quebec Act reinforced the province’s traditional anti-Catholicism, which was surpassed only by that of New England.1 The start of the Revolution had however introduced various counterforces, including American efforts to appeal to French Canadian Catholics during the Canadian campaigns,2 the quest for aid from Catholic France and Spain, and the presence of many Catholics in the Continental army and the state militias.3

That Jay had not been a supporter of the toleration measure as submitted, but had probably been outvoted by his fellow drafting committee members, is indicated by his central role in proposing qualifying amendments as soon as it was taken up by the New York Provincial Congress. The earliest extant draft for the constitution had qualified the equivalent section as follows: “That free Toleration be forever allowed in the State to all denominations of Christians without preference or distinction and to all Jews, Turks and Infidels, other than to such Christians or others as shall hold and teach for true Doctrines principles incompatible with and repugnant to the peace, safety and well being of civil society in general or of this state in particular[,] of and concerning which doctrines and principles the legislature of this State shall from time to time judge and determine and further that as the prevalence of Religion and Learning greatly contributes to the Happiness & Security of the people of every free State, the legislature of this State ought to afford them all proper encouragement.” Whether or not this version had been drafted by Jay, it was undoubtedly closer to his intentions than the one submitted.4

Although the minutes covering the subject are sparse and do not permit us to follow the nuances of the debate, the document printed below indicates that Jay introduced a series of amendments on 20 and 21 March 1777 that would retain some of the former restrictions. His proposals demonstrate his fear of the divided loyalties of Catholics and his perception that the Catholic clergy’s claim to be able to absolve sins or invalidate oaths of allegiance was a threat to the rule of law. Jay sought to restrict the political and economic rights of Catholics unless they disavowed their “allegiance and subjection” to the pope, bishops, and clergy. Jay first proposed that the religious toleration offered in New York could not be construed to extend to those “who inculcate and hold for true doctrines, principles inconsistent with the safety of civil society, of and concerning which the Legislature of this State shall from time to time judge and determine.” Debate on this amendment apparently convinced him that the proposal had little chance of success, and Jay withdrew it in favor of a second amendment that would have excluded from the general toleration “the professors of the religion of the church of Rome,” who would be barred from owning land or enjoying civil rights until they had appeared before the state supreme court to swear that “no pope, priest or foreign authority on earth, hath power to absolve the subjects of this State from their allegiance to the same” and to renounce “the dangerous and damnable doctrine, that the pope, or any other earthly authority, have power to absolve men from sins . . . and particularly, that no pope, priest or foreign authority on earth, hath power to absolve them from the obligation of this oath.” This second amendment, with its explicit anti-Catholic bias, was defeated two to one.

On 21 March, Jay introduced a third amendment providing that “the liberty of conscience hereby granted, shall not be construed to encourage licentiousness, or be used in such manner as to disturb or endanger the safety of the State.” This amendment, later modified further by the convention, was adopted.5 Subsequently, Jay also succeeded in adding special provisions for Catholics to the constitution’s article on the naturalization of foreigners. Under Jay’s amendment, aliens were required to take an oath of allegiance to the state that included renunciation of all allegiance and subjection to “all and every foreign king, prince potentate and state, in all matters ecclesiastical as well as civil.” The same oath could at the discretion of election inspectors be demanded of all voters. Jay also wanted to require all officeholders to take the oath. The convention did not adopt this measure.6

The persecution of Jay’s Huguenot ancestors by the Catholic Church and his adherence to traditional Whig views identifying Protestantism with liberty and Catholicism with oppression, foreign influence, and sedition no doubt primarily explain his actions. However, his nationalistic opposition to all forms of “divided loyalties”7 and his concurrent service on the Committee to Detect Conspiracies, with its emphasis on determining allegiance and enforcing loyalty oaths, no doubt reinforced his attitudes.8 While his stance was by no means atypical and received support particularly from representatives from the counties west of the Hudson River, the majority of his fellow legislators had moved away from the province’s traditional anti-Catholic policies and sought at most to protect the state from seditious or “licentious” actions rather than beliefs.9

1For a summary of the intellectual heritage of thinkers like Locke, Blackstone, and Milton, to which JJ was heir on the subject of Catholicism, see Clement Fatovic, “The Anti-Catholic Roots of Liberal and Republican Conceptions of Freedom in English Political Thought,” Journal of the History of Ideas 66 (2005): 37–58. On the opposition to the Quebec Act, see also Gouverneur Morris to JJ, 30 June 1775, above.

2Contrast the Address to the People of Great Britain that JJ composed in 1774 with his Letter from Congress to the “Oppressed Inhabitants of Canada,” adopted by Congress on 29 May 1775, both printed above.

3Duncan, Citizens or Papists? 1–36.

4Lincoln, Constitutional Hist. of N.Y. description begins Charles Z. Lincoln, The Constitutional History of New York (5 vols.; Rochester, N.Y., 1906) description ends , 1: 541; John W. Pratt, Religion, Politics and Diversity: The Church-State Theme in New York History (Ithaca, N.Y., 1967), 87–88.

5See also JJ’s praise for the measure as adopted in his Charge to the Grand Jury of Ulster County, 9 Sept. 1777, below.

6See JJ to Robert R. Livingston and Gouverneur Morris, 29 Apr. 1777, below. However, the New York State legislature did impose the oath for officeholders in 1788; it remained in effect until its repeal in 1806. Duncan, Citizens or Papists? 67–73, 119–20.

7On the theme of divided loyalty, see, for example, JJ to Peter Van Schaack, 17 Sept. 1782, Dft, NNC (EJ: 9423); copy, DUSC (EJ: 14002).

8Many Catholics were among the Mohawk Valley residents on the land of Loyalist Sir William Johnson who had been disarmed by Patriot troops commanded by Philip Schuyler in January 1776; many then migrated to Canada, joined Loyalist regiments there, and fought with St. Leger during his siege of Fort Stanwix in 1777. However, Catholics were not on the list of suspect groups targeted for investigation by the Committee for Detecting Conspiracies. Duncan, Citizens or Papists? 37–38, 43.

9Regarding JJ’s proposals for restricting certain Catholic beliefs and the compromise measures espoused especially by Gouverneur Morris and Robert R. Livingston limiting restrictions to actions threatening the peace or safety of the state, see Philip A. Hamburger, “A Constitutional Right to Religious Exemption: An Historical Perspective,” George Washington Law Review 60 (1992): 918–26.

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