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CHAPTER THIRTEEN

REJECTION OF THE JEW: THE STATE 1776–1840

THE SOURCE OF JUDEOPHOBLA IN THE UNITED STATES

While visiting in Charleston, President James Monroe attended a performance of Isaac Harby’s Alberti. In a way, his attendance at the theatre may be looked upon as an apology by Monroe to Harby. Three years earlier, Harby had written a strongly worded letter to Monroe, then Secretary of State, reproaching him for recalling Mordecai M. Noah. Noah’s removal from his consulate at Tunis in 1815 may or may not have been prompted mainly by anti-Jewish prejudice, but there can be no question that hostility to Jews was common enough in America during the early national period. Leeser said that every Gentile, everywhere, hated Jews—a strong indictment, but then Leeser, though only twenty-four at this time, was not a happy man.1

The sources of American Judeophobia are many. Most Americans were xenophobic, and Jewish apartness invited prejudice; Jews in those days rarely intermarried and were the country’s only non-Christians—the only infidels. There were Christians and Jews, too, who believed God himself was responsible for Jewish misfortunes. Some Christians insisted that Jews were being punished for rejecting Jesus; Leeser, reflecting a much older rabbinic dictum, implied at times that God frowned upon his Chosen People because they had flouted His Law. The Virginian Rebecca Samuel, an intelligent observer, wrote that the Jews were the architects of their own fortunes: Jews behaved badly; some of them were guilty of disgraceful conduct as Jewish religionists. The German Gentiles here, added Rebecca, are anti-Jewish which can certainly be documented from other sources. When in 1782 America’s Jewish exiles assembled in Philadelphia during the War, they set out to build a synagog. The Reformed German Congregation, Christians, let the Jews know without equivocation that they were not to build their house of worship near the church. But Judeophobia was not a made-in-America product. It was a transatlantic import, part of the intellectual and emotional baggage of the first immigrants. Its ultimate sources were the New Testament and, even earlier, the Hellenistic mind-set and literature. The Gospels have been—still are—very persuasive as dramatic stories of a good man done to death by his own people. Throughout these narratives, the Jews are pictured as the classical villains. The pious and the not-so-pious read the New Testament and looked askance at the Jews, remembered even after 1800 years as the children of those who had crucified God himself. A caveat: the fact that anti-Jewishness may have many sources would seem to imply that the actual cause cannot be determined with precision.2

THE ECONOMY AS A SOURCE OF PREJUDICE

For some Gentiles, dislike of the Jew was rooted in economic competition. There were always people who resented, exaggerated, and envied the financial successes of their neighbors, particularly their Jewish neighbors. For many, all through this period, the word “Jew” was a code word for the man who gained wealth unscrupulously. In attacking Robert Morris in 1782, Arthur Lee said that Morris had made the public trust subservient to his private speculations and had “become as rich as a Jew.” The Jew was seen as avaricious, a miser, a financial manipulator, a fraudulent bankrupt, a cheat. The 1820’s found children and kindly Americans singing ballads which stressed the greed of the Jew. This negative image was highlighted by the belles lettres of the day. The Jews were depicted as very rich; American papers informed their readers that Jewish bankers had already purchased Jerusalem; they were about to resettle the Jews in Palestine, and once they took over, the Holy Land would bloom again. By the 1830’s, the Rothschild myth was part of American folklore; this clan controlled Europe; its reach extended to Washington. The family was wealth hypostasized. And who was this Rothschild? Among his forebears were Judas Iscariot and Shylock, too! Hamilton’s fiscal policies, wrote a disgruntled Revolutionary War veteran, would make it possible for spies and Jews to ride in coaches!3

POLITICAL PREJUDICE

Economic envy of Jews has persisted till the present day. Remaining anti-Jewish political disabilities were finally repealed in the fourth quarter of the nineteenth century. In some cases, past political discrimination against Jews had been motivated by economic rivalries, religious prejudice, and various forms of sociocultural rejection. Except for a few irritating pinpricks, the federal government and the states, by 1840, had accorded Jews full political equality in all commonwealths except New Hampshire, Rhode Island, Connecticut, New Jersey, and North Carolina. The federal Constitution of 1787 gave Jews all rights on a federal level, a great step forward. The delegates were not unaware that this organic statute would help Catholics, Jews, and other dissenters, though this was not a prime goal for the lawmakers; their principal motivation in the area of religion was to keep peace between warring Protestant sects.

Men like Madison knew that the new federal Constitution did not and could not remove the restraints individual states imposed on Jews and other sectarians. Madison and his friends wanted an amendment to the effect that no state could violate the rights of conscience; religious immunities for all were to be secured against the encroachments of the states. This proposed amendment was rejected in the Senate. Thus the adoption of the Constitution in 1788 was not the last, but actually the first step in the struggle for a more complete political and spiritual enfranchisement of several American religious groups. Article VI and the first amendment of the Constitution protected Jews only on the federal level. The provisions were specific: No religious test shall ever be required as a qualification to any office or public trust under the United States; Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. In the original thirteen states, still virtually sovereign in their legislation, Jews had to wait a long time before they achieved all rights. The process went faster in the new commonwealths carved out of the transallegheny lands. The Northwest Ordinance of July 13, 1787, was clear: No person shall ever be molested on account of his worship or religious sentiments. This principle laid down in the Ordinance was ultimately applied to all the new states admitted to the Union. No problem was encountered on the score of granting Jews equality. In all the new lands and new commonwealths, Jews were few in number; most people were unaware of their presence.4

Some members of the constitutional convention were willing to tolerate political equality for all religionists on a federal level, but refused to do so on a state level. In Israel Vindicated, one of the pseudonymous correspondents wrote:

I confess, dear Isaacs, that I have hitherto been much deceived as to the boasted liberty of conscience enjoyed in this country. When I contemplated the language of the general constitution, which distinctly states, that every citizen is to be held eligible to fill public offices, without regard to his religious opinions, I had no idea that a principle, which all the states had recognized collectively as a leading bond of their union, could have been so easily invaded by particular states.5

New York was an exceptional state inasmuch as it gave Jews full rights almost immediately; freedom had come to the Jews in the Empire State in a hurry in 1777, but it took a decade to emancipate them in Virginia. Virginia’s 1776 constitution declared oracularly that “all men are entitled to the free exercise of religion” and hastened to add the admonition—no confessional limitation or disability—that it was the “mutual duty of all to practice Christian forbearance.” This latter phrase, Patrick Henry’s, remained in Virginia’s constitutions as late as the twentieth century.6

The concepts of the state’s Bill of Rights, however, were to find their way into the constitutions of various American commonwealths and into the political vocabulary of some of Europe’s liberals. The Anglican church was disestablished in 1779, not even a decade after Christian dissenters in this very state had been persecuted because of their beliefs and practices. An attempt to make Christianity the religion of Virginia and to tax all citizens to support the church of their choice failed. Whether Jews would have been excused from the religious impost is moot. Church and state were now separated. The issue was not fought with any specific group in mind; though Jefferson knew full well that Jews and other infidels would benefit, it was fought out on the basis of principle, and the Jews of the Old Dominion were accorded all rights. This new law was important; its influence was reflected in the new federal Constitution, in the first amendment, and in the political goals of French liberals. French Jewry was finally emancipated in 1790 and 1791; in the following decades, other European lands were impelled to grant rights and immunities to their Jewries which were still laboring under centuries-old restrictions.7

Like the other original states—with the exception of New York—Georgia in its first constitution (1777) barred Jews from high office. A few years later, in 1785, Christianity was formally established; all Christian churches, including the Catholic, were to be supported by state taxes. The year before, in 1784, an anti-Jewish brochure had made its appearance—Cursory Remarks on Men and Measures in Georgia, published anonymously, distributed at night, and signed A Citizen. The Jews, so the author said, have no right to seek redress in the courts; they are aliens. These people have no interest in the welfare of the state; their sole objective in life is to make money. These Jews, who once practiced ritual murder, now want to impose Judaism on the Americans as the religion of the land; they would love to declare Christianity a capital heresy. The author denied that he was intolerant: he numbered one Jewish family among his best friends. It is obvious that he was thinking of the Minises. This sorry screed was answered early in January, 1785, by A Real Citizen, the Jew, Colonel Mordecai Sheftall. This Revolutionary War veteran denounced the anonymous author—he surely knew who he was—as a former Loyalist who had been imprisoned for treasonable practices. Under suspicion for anti-Whig activities, the Loyalist sought to condemn recognized patriots by identifying them as Jews. This was the classical diversionary maneuver, the “smear” tactic, although probably ineffective this time since Savannah’s Jews were socially and culturally entrenched. Georgia’s 1789 constitution, adopted shortly after a majority of the states had already approved of the federal Constitution, opened all offices to Jews. The anonymous author of Cursory Remarks had complained in 1784 that the Jews were already active in the political process. This is probably true; at times statutory law may merely confirm established practice.8

South Carolina adopted three constitutions before rejecting its Anglican traditions and according liberties to Jews. Strangely, the 1776 constitution had been written by a constituent convention that included the Jew Francis Salvador and then proceeded to deny him the right to hold office. A few months later, while fighting for his country and his state, he was fatally wounded by Indians on the western frontier. On the whole, South Carolina, including Charleston, was Whig in sentiment; Jews were notable patriots and good soldiers, yet they had to wait for almost a decade after the fighting had ceased before they received the political recognition which they sought. A month after South Carolina Jews were emancipated, they wrote a letter to President Washington emphasizing the impact of the glorious revolution which “has raised us from the state of political degradation.” The phrase was an extravagant one; they were acknowledging the fact that the federal and some state governments had accepted them as full-fledged citizens.9

Several states had adopted organic laws in 1776. Pennsylvania’s new governing statute of that year was more liberal than South Carolina’s which still required a Protestant test for high office. Pennsylvania accepted all Christians; even Catholics could qualify. Democracy was extending itself, although Jews were still excluded from the magic circle. If the electorate was not moving rapidly to the left, that was understandable; the voters were not prepared psychically to reverse the thinking of centuries; they were still rooted in centuries of negative, anti-Jewish stereotypes. The original draft of the 1776 Pennsylvania constitution incorporated no more than a mild theistic test. When this became known there were immediate, indignant protests. Jews, Turks, et al., complained the Lutheran leader Henry Melchior Muehlenberg, would rule this country; America would become another Sodom. Another opponent said that the United States would be “unsafe for Christians.” Still another wrote that America would become an asylum for all the fugitive Jesuits, blasphemers of Christ, and outcasts of Europe. Protestant piety won out, and the final text adopted insisted on a test oath affirming belief in the New Testament.10

Unhappy to see themselves denied the right to hold office, Philadelphia’s Jews waited until the war was over and in 1783 moved to remedy the inequity. A committee of Jews hired a lawyer to study what other states had done by reading and analyzing the recently published Constitutions of the Several Independent States of America. In December, the committee addressed a memorial to the state Council of Censors, which had been charged to safeguard the liberties of the citizens. The protesting Jews pointed out that the Declaration of Rights assured them of all liberties enjoyed by others, that they had fought to make this country free, that they furthered trade and paid their taxes. The accusation was implicit: this was taxation without representation. If this injustice is to persist, Jews from abroad will not settle here but will opt for a free New York. The December, 1783, memorial apparently accomplished nothing, but important is the fact that the Jews here fought for their rights. Was this the first time that they stood up? No. They had bared their fangs at the bigoted Stuyvesant as early as the 1650’s. In January, 1786, some years before Pennsylvania’s Jews were emancipated the French minister to the United States said that the Jews, still shackled politically, hoped one day to become members of the state legislature. He was probably right, though no son of Father Abraham had as yet been seated in any state assembly.

In 1787, only New York and Virginia had “emancipated” the Jews, though political equality had also been proclaimed for all future settlers in the Northwest Territory. Jonas Phillips, a Philadelphia stormy petrel, wrote that year to the federal constituent convention, asking it to revoke the test oath in Pennsylvania’s 1776 frame of government. Phillips must have heard that the assembled delegates would prohibit any religious test for office and no doubt thought—logically, but incorrectly—that the new federal government would have the authority to override any test imposed by states. (Actually the delegates, meeting secretly, had already adopted an article dispensing with any religious test for federal office.) Phillips wanted the Pennsylvanians to abide by their own 1776 Declaration of Rights. The Jews, he said forthrightly, had been faithful Whigs; they had bravely fought and bled for a liberty which they were now not allowed to enjoy. Obviously, Phillips did not know that the new federal constitution already drafted would not permit the federal authorities to control the political conduct of the sovereign states. Phillips’s letter remained unacknowledged; two years later as a Pennsylvania constitutional convention met again, Phillips wrote once more on behalf of the Jews; his letter was laid on the table, but the new test oath of 1790 was one to which conscientious Jews could subscribe.11

Delaware’s 1776 constitution, like that of neighboring Pennsylvania, required a Christian test oath for office, but two years after Pennsylvania adopted its 1790 basic statute the three Lower Counties followed suit. Vermont, an independent republic before its admission into the Union in 1791, had already promulgated two Protestant organic statutes. In 1793, a new one was adopted granting full rights to all citizens, including Jews, and thereby making Vermont the first New England state to assume a non-restrictive approach. But there was no question of the Protestant, Christian sympathies of the lawmakers; this constitution and the two preceding ones called upon all good citizens to observe the Lord’s Day.

The emancipatory process slowed down in the 1790’s. The Second Awakening, the Protestant renascence, roused latent religious emotions and prejudices. Religionists, moving to the right, wanted to reserve the privileges of citizenship and office to Protestants alone. The excesses of the French Revolution confirmed Americans in their conservatism and their suspicion of infidels. The undeclared war against France in the 1790’s as well as the two wars with Great Britain stimulated an American nationalism that identified good citizenship with white Anglo-Saxon Protestantism. This automatically excluded Jews. The constitution which Connecticut adopted in 1818 was its first, since prior to that time its citizens had lived under a colonial charter granted in 1662. Though no religious constraints were imposed on inhabitants by the new frame of government, it is obvious from the text that its architects were thinking only of Christians. It is not saying too much to maintain that electors in every state could think only in terms of Christians and Christianity. This insistence on the basic, underlying importance of Christianity in the body politic is intimated in a statement made by Daniel Webster in neighboring Massachusetts. When a constitutional convention met there in 1820, the distinguished statesman said that there should be some “recognition of the Christian religion.” By 1843, there was no question that the Jews of Connecticut were deemed acceptable as citizens in the full sense of the term. They were then licensed to establish a congregation. It must not be forgotten, however, that, except for a brief period in Dutch New Amsterdam, Jews had never been forbidden in non-Iberian North America to establish congregations.12

MARYLAND

Prior to the adoption of Maryland’s first state constitution in 1776, a Jew, in theory at least, could have been executed in the colony for denying the Trinity. Actually, there was no problem on this score in a colony which sheltered so very few Jews, although it may be that Jews did not think of immigrating to the settlement because of its intolerant character. The first state constitution declared that no one could hold office who did not affirm “belief in the Christian religion”—which, of course, disabled Jews and possibly, Deists. During the brief period that intervened before the federal naturalization laws were accepted by the state, foreign Jews could not even become citizens of Maryland. Even after 1776, the state had the right—at its discretion—to impose a tax on all inhabitants for the support of Christian religious institutions; deniers of the Trinity still, in theory, faced the legal possibility of having their tongues bored through for expressing disbelief in this basic Christian doctrine. As late as 1748, the penalty had been inflicted on a Christian convicted of blasphemy. Under the Maryland organic statute, Jews could not serve as jurors, as militia officers, or even take the oath required of lawyers. Until 1847, a black could testify against a Jew, though not against a Christian. Rabbis were not authorized to perform marriages until the passage of the act of 1927, and Jews who worked on the Christian Lord’s Day were, of course, subject to penalties.13

The handful of Jews in Baltimore had very early begun fighting for full and complete equality. As early as 1797, Solomon Etting and his father-in-law Barnard Gratz had presented a petition to the General Assembly praying that Jews be put on the “same footing” as other citizens. Old Barnard Gratz had experience in these matters. He had a mind of his own. In 1770, he had called the King’s message to Parliament “foolishness.” In 1783, he had been one of the leaders in the fight to eliminate the religious test required of civil magistrates in Pennsylvania, but all the petitions presented for several years by him and by others in Maryland accomplished nothing. It was not until 1816 that the struggle for equality was again renewed with vigor. By this time, a little Maryland Jewish community was well in the making—there were about 150 Jews. Some of the Jews were cultured, wealthy, and influential; they resented and feared the disabilities that still operated against them. The sons of Israel I. Cohen, who had moved up from Richmond, could have looked forward to any office in Virginia, but in Maryland they could look forward to none. Jews had served in the defense of Baltimore in the War of 1812; they were privileged to fight and die as privates in the rear rank, but they could never hope to be officers, if the letter of the law was actually observed. Despite the requirements of a Christian oath, Reuben Etting had served as captain of the Baltimore Independent Blues in 1798 at the time of the undeclared war with France.14

That the disabilities which the Jews fought were real and not merely academic shadows was made quite clear in 1823 when Benjamin I. Cohen—one of the numerous brothers of Maryland’s most distinguished Jewish family of that generation—was elected captain of the Marion Corps of Riflemen, but was not allowed to assume command. (There was no war in the offing.) Ultimately, eager to retain him, the company decided to await the fate of the “Jew Bill” in the legislature before it elected a new commanding officer. In the meantime, the first lieutenant took over. All over the country, the struggle of the Maryland Jews for civil and political advancement was watched with keen interest and growing sympathy. The Southern Patriot, edited by Cardozo, compared Maryland to Germany, where in 1819 Jews were abused. Noah in the National Advocate intimated that the opponents of the bill were friends of the Inquisition. Henry Marie Brackenridge’s speech in defense of all those who could not in good conscience take the test oath, delivered in the House of Delegates on January 20, 1819, was published in pamphlet form by the Jews of Baltimore and widely distributed. A Baltimore Jewish boy, not yet thirteen years of age, was awarded the first prize in the local academy as the best student and as the outstanding moral personality of his class—yet, said Brackenridge, he could never hope to grace an office or accept an honor in his native state. Religion, he insisted, is a matter between a man and his God. Persecution because of dissenting religious opinion is tyranny. Disabling the Jew is a violation of the Maryland Bill of Rights of 1776 and the federal Constitution. He pointed to the irony that a Jew—who could not hold the pettiest office in Maryland—could become President of the United States. The Old Testament, he reminded the men in the back-country, is the foundation of Christianity; Jesus was a Jew.15

The chief protagonist of Jewish equality, however, in the General Assembly was not the brilliant Brackenridge, whose father had done business with the Gratzes on the Pittsburgh frontier in the 1790’s, but Thomas Kennedy (1776–1832). Kennedy, who had come from Scotland in 1796, was one of the choicest spirits in all American history, a merchant, a poet, a songwriter, a journalist, an ardent Jeffersonian. It was this romantic Scotsman, a member of the House of Delegates in 1817, who became the leader in the struggle to pass a bill “to extend to the sect of people professing the Jewish religion, the same rights and privileges that are enjoyed by Christians.” He was a pious Presbyterian who knew no Jews personally but sought to give them equality, real essential equality, because of the inexorable demands of patriotism, religion, and morality. Jews who are to be restored by God himself to the Promised Land must be helped not persecuted. The present disabilities placed on them will repel immigrants of enterprise and capital. The bill which Kennedy helped sponsor was introduced December 21, 1818. The Jews, Kennedy was to argue, believe in God, a Maryland requirement; Jews are ready to swear on the Five Books of Moses; the federal Constitution imposes no religious test. This Jew Bill was defeated in the House on January 22, 1819; the vote was 50 to 26. Some newspapers said that this rejection of the Jews was reminiscent of the persecutions in Europe. Despite this defeat Kennedy, Brackenridge, and their associates Colonel William G. Worthington, John S. Tyson, all liberals, persisted in their efforts year after year. The opposition was bitter. A Mr. LeCompte of Dorchester, who voted against the bill, stated that “he did not think it proper or expedient to grant the rights and privileges which we enjoy, to a sect of people who do not associate with us, and who do not even eat at our table.” Another member of the legislature objected to the bill because, “it would encourage the Jews to come and dwell among us.”16

Kennedy and his friends continued to introduce bills but made no progress until 1822–1823. A new version, broader in scope than earlier ones, included all who refused to take a test oath. After pointing out that any denial of political immunities on religious grounds violated both the state and the federal constitutions, Kennedy made the sweeping statement that it was unchristian to do so. He emphasized the fact that a Jew could not be a justice of the peace in Maryland, but could become Chief Justice of the United States. Most other states do grant the Jews freedom, he said, but he thought it the better part of wisdom not to list the commonwealths which were laggard. The 1822–1823 bill, which passed both houses, constitutionally required confirmation at a later session of the legislature. In the meantime, Kennedy, running for reelection, was attacked by a “Christian Ticket.” He was called a Judas Iscariot who had betrayed his religion and his God; his own constituents failed to reelect him because of his espousal of the “Jew Bill.” Others who voted for the 1822–1823 emancipatory act were also defeated; Kennedy was out of office till 1824.17

Why were the people of Maryland so opposed to the complete enfranchisement of Jews? It would seem that this opposition was strongly motivated by religious prepossessions. In the Niles Weekly Register of September 6, 1823, we have a report of a Benjamin Galloway’s objection to any constitutional change in Maryland: “Preferring, as I do Christianity to Judaism, Deism, Unitarianism, or any other sort of new fangled ISM.” Christian Ticket supporters were very probably aware that New Hampshire, Massachusetts, Rhode Island, New Jersey, and North Carolina would not open the highest offices to Jews. In colonial days, Catholics had labored under severer disqualifications than Jewish infidels; it was only in 1776 that the Maryland constitution gave Catholics the right to hold office. It is curious that Mordecai M. Noah believed the Catholics of the state were opposed to Jewish civil equality and so expressed himself in his National Advocate until he was corrected by Jacob I. Cohen, Jr. Cohen’s letter pointed out that the Catholic Roger B. Taney—later Chief Justice of the United States Supreme Court—had addressed the State Senate “in eloquent strains in favor of abolishing test oaths universally.” Yet Noah, though a nativist, was no anti-Catholic, for he realized it was but a step to Judeophobia.18

The specific charge against the Jews of Maryland at this time was that they had crucified Jesus. Apparently little distinction was made between the Jerusalem Jews of the first century and their latter-day descendants in nineteenth-century Baltimore. They were the “enemies of Christianity” who threatened the beliefs of Christians and mocked the very existence of Christianity; the state would be flooded with Turks and Jews; Maryland would become another Judea; Baltimore, another Jerusalem. Deep in the subconscious of many a bucolic assemblyman was the fear of effete Baltimore urbanites in sympathy with the emancipation bill. Anything the city people were for was automatically suspect, and the plea of the liberals that the Jews were wealthy and heavy taxpayers only confirmed the rustics in their stubborn resistance. The politically tolerant stressed not only the productive character of Baltimore’s Jewish businessmen, but pleaded also for passage of the act as a means of stimulating Jewish migration to Maryland—necessary if the state was to meet the growing competition of its neighbors. These were the material arguments, but men like Kennedy and his friends expressed the hope that the passage of the bill would also be a blow to prevalent European political reaction, that its enactment was demanded by the spirit of true Christianity as exemplified in the life and work of Jesus and Paul, Jews after the flesh. America must continue to be the bright example of a land that offered equal rights and immunities to everyone.19

Passage of the act of January 29, 1823, was the first victory for the Jews and the forces of liberalism; they were eager for its confirmation. Before this time, the Jews had been working behind the scenes. Now they came out in the open. On January 8, 1824, they presented a memorial. This appeal of theirs was couched in universalistic, humanitarian terms; they wanted equality for all—not merely for Jews—who were politically disabled because of dissenting views. In their arguments the Jews leaned heavily on the federal Constitution; they pointed to the evils in reactionary Europe and stressed the importance of the transatlantic West as the hearth of freedom; church and state must be separated. The word “Jew” does not occur in this document. Did these Jews fight shy of it? No! Liberty is not a Jewish matter; it is the concern of all. Unfortunately for the protagonists, the confirmatory act was defeated that year by a vote of 44 to 28.20

Undaunted, Kennedy was now back in the Assembly. Still another effort was made to revise the bill to make it acceptable. The more universal, all-inclusive bill guaranteeing rights to everyone was scrapped. It was obvious that pious Christians were bitterly opposed to freethinkers, and atheists; Jews, however, could be deemed theists, believers. A compromise act was passed on February 25, 1825, permitting all Jews who subscribed to a belief in “a future state of rewards and punishments” to take the oath. (This provision was copied from Pennsylvania’s 1790 constitution.) Thus, in essence, a new test oath was proposed, and it was assumed that Jews could take it. Even this halfway measure was passed by a margin of but one vote on the last day of the session, when one-third of the members was absent. It was confirmed the following year on January 5, 1826. Shortly afterwards, Jacob I. Cohen, Jr., and Solomon Etting, two of the prime supporters of the 1824 memorial, were elected to the First Branch of the Baltimore City Council. Earlier, however, on the very day the bill was enacted into law, Benjamin C. Howard had written to his friend Etting: “The stain upon the constitution of Maryland is blotted out forever, for in the march of the human mind it is impossible to recede.” It took twenty-nine years to win the battle. Still not happy with the new test oath, Dr. Joshua I. Cohen fought in vain, in later years, to remove it from the constitutions of 1851 and 1867.21

MASSACHUSETTS, RHODE ISLAND, AND NEW JERSEY

Largely unresponsive to the liberal ferment in the Middle Atlantic States, the Bay State moved only hesitantly to the left. To be sure there was as yet no Jewish community in Boston. The Massachusetts constitution of 1780 established Protestant Christianity as the religion of the state; Catholics and Jews were disabled. Discussing the new federal Constitution of 1787, a Massachusetts militia officer shuddered, fearing lest Popery and the Inquisition be established in America. It was not until 1833 that religious tests for office were annulled; all religionists were now under the protection of the law, and Protestantism was in effect disestablished. Rhode Island, like Connecticut, had been governed by a British colonial charter granted in the 1660’s; it did not adopt a constitution until 1842. Catholics had been emancipated by statute as early as 1783. The 1790 letter of the Rhode Island Jews sent to President Washington on his Newport visit exulted in the rights which they had received through “federal union.” They mentioned that they were not suffering persecution; there was no prejudice, they had liberty of conscience and the rights of citizenship, civil and religious liberty. Nonetheless, they knew full well that they as Jews did not enjoy all these privileges; the State of Rhode Island itself still denied them political equality. This congratulatory address of the Newport Jews to Washington was certainly not without propagandists intent. The Newport Jews gloried in the American freedoms: “affording to all … immunities of citizenship.” But for another fifty-two years they were to remain without these very immunities in Rhode Island. Civil and religious liberties were finally granted to all citizens in 1842. The New Jersey constitution of July 2, 1776, prescribed that there be no establishment of any religious sect; everyone was granted freedom of worship, but the important offices were to be reserved to Protestants. A new constitution, adopted at Trenton in 1844, imposed no religious test as a qualification for office.22

NORTH CAROLINA

As in New Jersey, so in North Carolina, the first constitution, framed by a special congress in 1776, held only Protestants eligible for office. Catholics and Jews were excluded, although there is no evidence that even a half-dozen Jewish families were to be found in North Carolina at that time. In 1788, a state convention was convoked to discuss the acceptance of the proposed federal Constitution. Several delegates were worried lest non-Protestants be elected to high office in the federal government; Governor Samuel Johnston thought there was little likelihood of a Jew becoming president. He admitted that the new federal Constitution might induce Jews to come to the United States, but in all probability their children would become Christians. The Reverend David Caldwell, an important Presbyterian minister, was unhappy that the Constitution stipulated no religious tests for office; this was an invitation to Jews and pagans to settle here in America and might at some future period endanger the character of the United States. Caldwell’s prejudices, however, were directed mainly against Catholics. Another delegate said that a Catholic or a Moslem might even become president. In principle North Carolina wanted no state church; actually its citizens took for granted the de facto establishment of Protestant Christianity. In practice, however, they were ready to close their eyes if a qualified Catholic or Jew ran for office; indeed, in 1781 a Catholic was elected governor.23

In 1808, Jacob Henry, a Jew, was elected to the House of Commons from Carteret County and took his seat without having taken a Christian oath. The following year saw Henry reelected. A gentleman of culture and education, Henry was the native-born son of a German Jewish immigrant, who had in all probability come to the colonies before the Revolution. Joel, the father, came from a “city and mother in Israel,” Fuerth in Bavaria. And let no one wonder how a Bavarian Jew could wander all the way from the fine community of Fuerth to the wilds of colonial Carolina. Jews everywhere were then on the move. One of the best known Jews in New York was also a native of Fuerth—Ephraim Hart, an original member of the group that founded the first stock exchange in the city; he was a land speculator and a president of Shearith Israel in the last decade of the eighteenth century. Joel Henry’s wife had been a Gentile. By profession, she was a midwife. Her obituary cited Revelation 14:13: “Blessed are the dead which die in the Lord … that they may rest from their labors.” (It is difficult to know whether the pun was intentional or not.) Joel’s wife lived as a Jewish woman; certainly their son Jacob was raised as a proud Jew. Both father and son seem to have been members of Beth Elohim in Charleston.24

Jacob, the son, lived in various parts of the Carolinas, although his chief seat seems to have been Beaufort, below Pamlico Sound. The fifteen-year-old Esther Whitehurst, the Gentile girl whom he married in 1801, also came from that town. It must have been quite a shock to him, after he had served for a year in the state legislature and had been reelected for another term, to see one of his colleagues rise and, without warning, ask for his expulsion because Henry, as a Jew, was not entitled to a seat in the Assembly. He had refused to take the prescribed oath affirming a belief in the divine authority of the New Testament. Naturally, as a Jew, he could not and would not take such an oath. On the following day, the 6th of December, 1809, after consulting with eminent Christian jurists, Henry wrote a letter to his colleagues in the House of Commons. It is a proud justification of his refusal to take the test oath. Tradition has it that his letter was framed, if not actually written, for him by Chief Judge John Louis Taylor of the State Supreme Court, a Catholic.

In his letter, Henry pointed out that the Declaration of Rights of the 1776 constitution had declared in Section 1, Article XIX, that “All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences.” Article XLIV of Section 2 also made clear that the Declaration of Rights ought never to be violated on any pretense whatsoever. Its jurisdiction is absolute. Henry went on to say:

Are you prepared to plunge at once from the sublime heights of moral legislation into the dark and gloomy caverns of superstitious ignorance? Will you drive from your shores and from the shelter of your Constitution all who do not lay their oblations on the same altar, observe the same ritual, and subscribe to the same dogmas? If so, which among the various sects into which we are divided shall be the favored one?… The religion I profess inculcates every duty which man owes to his fellow men; it enjoins upon its votaries the practice of every virtue, and the detestation of every vice, it teaches them to hope for the favor of heaven exactly in proportion as their lives have been directed by just, honorable, and beneficent maxims.

His appeal shows a reverence for what was finest in the America in which he believed. Other Carolinians—though not a majority of the representatives—shared his liberal views. Years later, his letter was published, with minor omissions, as an address in the American Orator where, for a generation, it served to inspire children in the schools—even in those states where the Jews did not enjoy full rights!—and to enhearten Americans devoted to the principle of equality for all irrespective of religious belief. Jacob Henry retained his seat in 1809, but not because his colleagues were impressed with his spiritual vision or the compulsion of his arguments; he retained his seat despite his arguments. They liked the man; that was sufficient for them. Loath to surrender the anti-Catholic and anti-Jewish clause, the House declared that Section XXXII, specifying that non-Protestants could not hold office in any civil department of the state, meant that Jews, Catholics, and the like could not fill executive or judicial offices, but could serve as legislators. They were forbidden to interpret or execute the laws; they could merely make them—hence Jacob Henry could keep his seat!25

From 1823 to 1835, liberals, with Catholics among the leaders, fought to open all offices to citizens without respect to their religious convictions. The disabilities imposed on Jews and Catholics were openly discussed. Pleas were made on behalf of both; the abolition of the test oath was sought. Citing Jonathan Swift, William Gaston, a Catholic, said, “We have just religion enough to hate, and not enough to love each other.” Finally, in 1835 the Catholics were put on the same plane of equality as the Protestants; although the test was reluctantly extended to include all Christians, the prejudice against the Catholics had by no means abated. “Catholicism cannot be recognized as a Christian church,” said a Presbyterian about that time, and a convention in Pittsburgh also passed a resolution to that effect. The changes in 1835, however, were of no benefit to Jews, Deists, Quakers, or atheists. In view of the acceptance of Jacob Henry in 1808–1809, why were Jews not fully emancipated a generation later, in 1835? The good will which had characterized the majority of legislators in 1808–1809 was absent in 1835; public opinion, however, forced acceptance of Catholics in 1835. Despite the virulent anti-Catholicism of that decade, democracy was on the march.26

Loyalty to Protestantism still expressed itself in discrimination against Jews and other infidels. Three attempts were made between 1858 and 1865 to give Jews full rights; each failed. In 1858, a committee reported that the clause in the constitution disabling Jews was “a relic of bigotry and intolerance”—and then offered the opinion that “it is highly inexpedient to alter or amend the Constitution by legislative enactment in any particular whatsoever.” Dozens of North Carolina Jews fought in the battles of the Civil War; a number were wounded, and some were killed, but the two attempts under the Confederacy in 1861 and 1865 to amend the Constitution brought them no relief. Only in 1868, in a post-war constitutional convention, was a motion emancipating Jews brought up and passed immediately by an overwhelming vote. There was little or no discussion. By that time—it was during the Reconstruction years—all rights had been given to blacks; the legislators evidently felt they could not deny them to Jews. There were fears, fears of the federal government and of the Civil Rights and Reconstruction Acts. The fourteenth amendment was eloquent in its mute implications; the Northern troops stationed in the state were equally convincing. Thirteen freedman sat in that constitutional convention. As in Jamaica, the blacks of North Carolina were “emancipated” before the Jews. Blacks were already holding important offices; one was a member of the standing committee on the Preamble and Bill of Rights. The only test for office now required was belief in Almighty God. It is moot whether under “normal” conditions the white majority would have accepted the 1868 constitution. The popular vote to adopt that instrument was 93,084 to 74,015; nearly 30,000 registered voters cast no ballot.27

NEW HAMPSHIRE

On August 24, 1865, Sergeant Major Abraham Cohn, of the 6th New Hampshire Veteran Volunteers, was given the Medal of Honor, America’s highest award for bravery; he had been wounded at Petersburg. Had Cohn chosen to make New Hampshire his permanent home, he would have been subject to disabilities imposed on Jews by that state. In 1776, New Hampshire was the first American commonwealth to adopt a frame of government; in 1877, it was the last to emancipate its Jewish and Catholic citizens. In the state’s first extensive constitution (1784), everyone was assured inalienable natural rights, the rights of conscience, etc. Having said this, the legislators proceeded in 1792 to establish a quasi-Protestantism; Catholics and Jews could hold no important offices. Efforts were made in the mid-nineteenth century to amend the constitution, to delete the word Protestant where it occurred, but the liberals fought in vain. The editor of New York’s Jewish newspaper The Asmonean asked the Jews in 1852 not to vote for Franklin Pierce because he was from New Hampshire. In 1876, the people finally voted to translate into action their own Bill of Rights and the implications of the Jeffersonian Declaration of Independence. In a statewide vote on a new organic statute, 27,664 opted to delete the references to Protestants; 15,907 voted not to delete them. Thus, Jews were now allowed to hold office. The New Hampshire prejudice, in any case, was not primarily against Jews, but against Catholics; the former had little visibility; they themselves could do nothing or very little to fight for their rights. The whole state had only one small Jewish mutual-aid society of about twenty members; the total number of Jews in New Hampshire then was about 150. The constitution of 1902 exhorted Protestants to support and maintain teachers of piety, religion, and morality, though Jews were exempt from such taxation. As late as the middle of the twentieth century, the people of New Hampshire still retained a clause in their constitution that “every denomination of Christians… shall be equally under the protection of the law.” Efforts to delete this clause have failed.28

A REVIEW: THE STRUGGLE FOR POLITICAL RIGHTS

For Jews in the United States, freedom was essentially the right to hold office. There was never a need to struggle for freedom of worship. The Jews had always had this privilege in the English colonies and even under the Dutch in New Amsterdam after a brief period of harassment. The political status of Jews in the new United States was improved by the Declaration of Independence, the Articles of Confederation, and the federal Constitution. The national government—insofar as its authority reached—and a number of states had emancipated Jews by 1793: New York, Virginia, Georgia, South Carolina, Pennsylvania, Delaware, and Vermont. Political emancipation came in Connecticut in 1818 and in Maine in 1820, but the assumption of the legislators in these two states was that beneficiaries would all be Christians. There were very few Jews in Connecticut; there were still fewer, if any, in northern New England. The battle for equality still had to be fought from 1794 to 1877 in Massachusetts, Rhode Island, New Hampshire, New Jersey, Maryland, and North Carolina. For years, not one of the slow-emancipating states was able to muster a synagogal quorum. Jews stayed away for a variety of reasons. Were the cautious Gentiles here more frightened than the “liberal” states by the excesses of the French Revolution? Post-Napoleonic conservatism, Orthodox Christianity, medieval romanticism were then triumphant in Europe. Here, too, in the United States, there was a religious reaction, a return, a regeneration that strengthened the Protestant churches. The Second Awakening and revivalism were part of this religious upheaval. American nationalism, now growing perceptibly, was identified by many with Protestant Christianity; a xenophobic suspicion of non-Protestants was not uncommon.29

As far as Jews were specifically concerned, no progress was made during the years of Jefferson’s presidency. This may well have been due to the economic distress of the period—the threat of war with England. Jews in the commercial states already had their rights and had no need to push. The early intimations of Jacksonian democracy certainly strengthened the hands of individuals, but the Jews had to wait until 1826 to receive recognition in Maryland, until the 1840’s in Rhode Island, Connecticut, and New Jersey, and until the 1860’s and 1870’s in North Carolina and New Hampshire. North Carolina and New Hampshire were constantly criticized as un-American and bigoted; even in conservative England and in the Central European lands, Jews were already becoming full-fledged citizens. Determinative to a degree for these two American polities was the realization that they would have to tolerate Catholics; to many Protestants, Jews were preferable. Question: Did Jews stay away from states where they were disqualified? Not necessarily. They avoided those states until they became economically attractive. Then they moved in and ultimately acquired all rights. One may well ask, however, whether the Jews, never more than a paltry few, ever won the desired rights solely through their own efforts. Their allies, the political and religious liberals, won the victories; the Catholics and Dissenters also had a stake in disestablishment whether the establishment was quasi or actual.

JEWISH RESENTMENT

While their allies and the forces of history moved to emancipate non-Protestants, what was the attitude of those Jews who had to cope with political curbs? Jews knew the meaning of political rights. They valued what they had been denied for centuries. They were aware of the promises of equality that had been made and, from the American Revolution on, were bitterly resentful of every disability. Many had been soldiers; they had earned the immunities they sought. As an urban literate middle-class group, they did not deem themselves inferior. True, Jews were aware that Catholics, non-trinitarians, infidels, and the propertyless Christian masses also suffered discrimination, but this was no consolation. They objected to the prejudices they had to suffer because of their religion; they resented the test oaths and the quasi-establishment of Protestantism. In a few instances, they were able to help themselves directly—in New Jersey, for example; there, when the 1844 constitution was adopted according them full citizenship, the delegate from Essex County was a Jew, David Naar, the mayor of Elizabethtown. The euphoria of the Revolution predisposed some states to be liberal; from 1793 on to 1877, the process slowed down perceptively. To be sure, the Bill of Rights in several, if not most, commonwealths promised all citizens equality, but, quite correctly, a writer in the American Israelite called these rhapsodic paragraphs “Constitutional gush”; after these effusive lucubrations, the constituent conventions settled down and proceeded to disqualify Jews, Catholics, Unitarians, freethinkers, and others as well.30

What was this? Cant? Did the legislators not realize what they were saying? Did they live in a double, self-contradictory world of Enlightenment and Christian Orthodoxy? It was not imperative for constitutions to be consistent or even tolerant. They genuflected toward the future and honored the past. If the states were slow to implement the hopes of the Declaration of Independence, it should not be forgotten that, by 1776, English North America already had a tradition of over 100 years of restrictions imposed upon Jews. Moreover, all Christians had inherited centuries of anti-Jewish prejudice. To ask a typical “establishmentarian” Protestant to accord equality to dissenting Protestants, to Catholics, to non-trinitarians, to infidels, to Jews—this was asking a great deal. Citizens in states where political constraints were in force enjoyed their prejudices, righteously sure of their rectitude. Thus, there was a need for fourteen revolutions in fourteen states; there were constant struggles between liberals and conservatives. Almost 100 percent of the citizenry never doubted that America was a Christian country; there could be no question about this. The masses as well as the government thought that they were generous and liberal in allowing freedom of conscience and worship to all. No one was totally denied political privileges. Jews could vote, but office holding? That was different. The government and the people changed reluctantly. The overwhelming majority of Americans were rural folk, farmers; Jews were an urban group; the masses looked with suspicion upon city folks; to boot, the Jews were infidels. It was the backcountry farmers and villagers whose resistance to political emancipation for Jews delayed it for decades, in New Hampshire for a century until in a number of instances they were outvoted or outmaneuvered by bourgeois urbanites. If the Jews were ignored politically in many states for years, they were not alone—this, too, was the lot of the moneyless and the vote-less Protestant masses. All men may be created equal, but they do not necessarily have equal rights.31

THE UNITED STATES, A CHRISTIAN COUNTRY

Most Americans, even though not churchgoers, believed that this was a Christian country, indeed a Protestant country. Legally, formally, actually, under English rule, all provinces were Christian, and the Continental Congress continued the tradition. On occasion, the Continental Congress spoke of the Free Protestant colonies; the members invoked God and Jesus and the Holy Ghost, they appointed chaplains, and on one occasion attended church as a body. The Continental Congress identified Protestantism with true religion, enjoined Sunday observances, and called for public worship, thanksgiving to God, and Christian education. The treaty of peace with England was proclaimed in the name of the Most Holy and Undivided Trinity. By the terms of the Northwest Ordinance of July, 1787, in the regions that were to develop into new states, the Continental Congress would make grants of land for schools and for religion, both of which were to be encouraged. That same month, July 27, 1787, when selling huge tracts to the Ohio Company of Associates, Congress required the company to reserve extra land sections for educational and religious needs. The profits from the sale of lands granted by Congress for the support of Christian churches and schools were to be distributed to the churches. The Ohio Constitution of 1802 accepted and incorporated this proviso, and for decades grants were accordingly made to help churches and schools. The distribution of government funds to churches was finally discontinued because of the problem of multiple rival sects. It was the same difficulty, that of adjusting church-state relations, which made it imperative to incorporate the first amendment into the federal Constitution.32

The problems of harmonizing Christian religious loyalties with political latitudinarianism, mirrored in the Northwest Ordinance and the first constitution of Ohio, are reflected to an extent in other aspects of the federal government. In 1796, in a treaty with Moslem Tripoli, the United States declared itself a non-Christian country. The treaty, negotiated by Joel Barlow, contained the following sentence: “the government of the United States of America is not in any sense founded on the Christian religion.” This international agreement was approved by the Senate, hence the statement became official. Literally—but not actually—Barlow was right. It is doubtful, however, whether a Christian people can ever maintain anything but a Christian state. Barlow was a freethinker; his few words in the treaty were, in a way, an obiter dictum. The Arabic version of the treaty did not substantiate his statement. Even after the Declaration of Independence and the adoption of the federal Constitution, both of which ignored the Christian character of the country and recognized no religious institution, most Americans believed that the United States was historically, traditionally, practically, and legally a Christian land. This widespread conviction was voiced by Luther Martin of Maryland in a debate on the ratification of the United States Constitution: “in a Christian country, it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism.”33

Throughout this period, every legislature opened with prayer; Christian clergymen were regularly invited, Jewish ministers but rarely. The Indian agent Isaac McCoy (d.1846) received the moral support of the federal government in his work as a Baptist missionary to the Indians. In 1826, Thomas Jefferson wrote to Isaac Harby that most of the country’s colleges including those which were state or government-supported, compelled all students to take courses in theology. When, in 1829–1833, there were strong objections in the New York state legislature to opening sessions with prayers and to inviting and paying chaplains, a committee was appointed to study the problem. It stated categorically in its subsequent report that Christianity as such was not the law of the land, but in this highly sensitive issue, a compromise finally had to be adopted: payment to chaplains was forbidden, but clergymen were to continue to act as chaplains. An indignant protest against the decision was made by Solomon Southwick, who said of the two active members of the committee that one was a Jew and the other an infidel. According to Southwick, Mordecai Myers, the Jew on the committee, should have remembered that he represented a Christian people: this is a Christian country. Do Myers and his fellow-committeeman want to expel Christianity? Jews ought to be grateful for what Christianity has done for them; Christians have died to make Jews free!34

Throughout the nineteenth century, important jurists like Chancellor James Kent, distinguished leaders like Daniel Webster, and in 1892 the Supreme Court itself believed that, in many respects, this was indeed a Christian nation and Christianity was entitled to special consideration. The United States was a Christian country, if not constitutionally, then by virtue of its way of life. Jurists, though saying or implying that the Christian religion was part of the common law, hastened to add that, even so, no citizen’s rights and immunities were ever to be limited because of religious beliefs or practices. Lawyers, legislators, and clerics liked to cite Lord Coke (d. 1634), that “Christianity was part and parcel of the common law of England.” In 1917, English legal authorities—apparently forgetting that they could not erase history—declared this phrase rhetoric and not law. Here in the United States, the devout and their clergy had long insisted that it was law, not rhetoric; they wanted to put God in the Constitution—a Christian God, to be sure. No later than 1863, serious attempts were made to amend the preamble of the United States Constitution. A zealous group, which soon called itself the National Reform Association, worked incessantly in the second half of the nineteenth century to effect the desired change. Similar efforts continue even today; the United States it is contended, must be recognized officially, formally, as a Christian state.35

In 1892, the Supreme Court, in a decision about a case involving a clergyman, made the statement, “This is a Christian nation”—but this, too, was an obiter dictum. Nevertheless, Chief Justice Brewer and his associates never meant to imply that any non-Christian was less a citizen than his Christian neighbor. The American public, however, has never hesitated to make its own pronouncements on this subject. In 1868, North Carolina, in the very constitution that finally emancipated its Jews, boasted that it “was a civilized and Christian state,” though in that context “Christian” meant nothing pronouncedly theological. In general, it may be said, most Christians believed that non-Christians in the United States were expected to respect, if not to accept, Christian mores. Christians were the hosts; non-Christians, even though citizens, were required to defer to the overwhelming majority—even to their own hurt. Deference to the religion of the masses inevitably brought disabilities in its wake for Jews: exposure to the charge of blasphemy, social cleavage between Jew and Christian, imposition of unacceptable marriage laws, and, most importantly, compulsory Sunday closing, a severe economic burden to observant Jews—and others—who did not open their shops on Saturday or farm their fields on the seventh day and thereby lost two days a week in the effort to make a living.36

Religion, particularly Christianity, is still recognized as an integral part of American culture and polity, as has been the case since the days of the Pilgrim Fathers and since the Declaration of Independence, which invoked “nature’s God.” Today the United States government continues to take official notice of religion, above all Christianity: chaplains are appointed, clergymen are given special exemptions, churches (synagogs and mosques, too) and religious charities are tax exempt. Religious festivals are recognized; Christmas is officially a national holiday; the oath required of government officials is religious in nature, and the Sunday laws are still in force in some states. Without regard to legal prohibitions the Bible is still read in many public schools, while the coinage carries the defiant affirmation: “In God We Trust.” Despite the fact that no one religious body has more legal rights than any other, Christianity is a protected religion—though not established as such. There can be no question that, historically, the United States is a Christian nation.37

BLASPHEMY LAWS

In colonial days, most provinces had enacted laws against blasphemy; even the death penalty might be invoked for men or women who cursed God or Jesus, or denied that Jesus was an integral part of the triune Deity. In 1658, a Maryland Jew, Jacob Lumbrozo, was arrested and was charged with blaspheming “our Blessed Savior.” It would seem that he had engaged in a theological discussion with devout Puritans and Quakers, a debate that he had not initiated. As a Jew, he had denied the divinity and resurrection of Jesus. Later released, he may have escaped punishment by becoming a Christian. Despite the fact that blasphemy laws remained on the books of some states into the twentieth century, there is no record that any other Jew was ever arrested on the charge, which has been defined as showing contempt for Christ, Christianity, or the Scriptures. Blasphemy laws were certainly not enforced against Jews; individual Gentiles were arrested and punished for blasphemy as late as the nineteenth century. The very fact, however, that such laws were on the statute books in 1825 disturbed John Adams very much, and he unburdened himself in a letter to Thomas Jefferson: “I think such laws a great embarrassment, great obstructions to the improvement of the human mind.”38

WORSHIP IN PUBLIC INSTITUTIONS

Many, if not most, public schools in the United States before the Civil War—and long after too—furthered Protestantism or taught a Protestant type of civil religion reflected in the school curriculum. Sectarian prayers were common—to the despair of Catholics and Jews. Jews objected to all Bible readings in school classes; the Catholics rejected the standard Protestant King James version of the Holy Scriptures. Protests made to the New York authorities elicited the answer that this was a Protestant country. In Massachusetts, as in Maryland, rabbis could not legally perform marriages; they were not deemed ministers of the gospel. The Massachusetts law would prevail until 1892; it is very probable, however, that rabbis ignored these regulations without suffering prosecution. Many states declared incestuous the marriage of an uncle to a niece, though Jewish law saw no wrong in such unions. When Alfred Mordecai was stationed at West Point as a young instructor, he was compelled to attend chapel. These compulsory Christian services did not annoy him, for he would sit in the rear, read a good book, or take a nap. As far as he was concerned, the time was not wasted. In all probability, it would never have occurred to the superintendent at West Point to excuse a Jew from Christian worship services. Compulsory attendance at chapel in most educational institutions was an old tradition which continued into the nineteenth and even twentieth centuries.39

THANKSGIVING PROCLAMATIONS AND THE PROBLEMS THEY INVITED

Because it was proper not only to worship but also to thank the triune God from whom all blessings flowed, Thanksgiving proclamations in the early days were Christian in content. The Pilgrim Fathers first thanked God in 1620; the custom was to spread slowly in colonial America. Post-revolutionary American leaders, mindful that most citizens were not committed, observant Christians, hesitated at times to enjoin them to direct their prayers to the Father, the Son, and the Holy Ghost. Thus, the cautious Washington did not address himself to the Christian God in the first national Thanksgiving proclamation. For this omission he was criticized by a Massachusetts clergyman; leaving out our Lord and Savior Jesus Christ was unpardonable. Another clergyman, David Tappan, Professor of Divinity at Harvard, rallied to Washington’s defense. Tappan was ready to unite Christians, Jews, and Deists in a common Thanksgiving prayer. Madison, the liberal, intent on not breaching the wall between church and state, issued such Thanksgiving proclamations, but with misgivings; inviting people to worship was a religious act. This liberal Virginian was also of the opinion that chaplains serving government institutions should not be paid out of public funds. Jefferson, his predecessor, was the only president who refused to issue religious proclamations. He never urged the people to go to their churches, to fast, to pray, or to give thanks. The federal government, so he believed, had no right to meddle in matters religious.40

Another Virginian, Governor Henry Alexander Wise (1856–1860), a fiery liberal—except on the issue of slavery—refused on principle to ask his fellow citizens to hold Thanksgiving services. Anything religious was outside his jurisdiction. President William Henry Harrison, in 1841, expressed a profound reverence for Christianity in his inaugural address. When he died a few weeks later, his successor John Tyler appealed to his fellow Christians to join in fasting and prayer. When Jews protested their exclusion, Tyler wrote a manly letter explaining his lapse. It was not unusual for governors to ask their people to assemble in their churches and thank God for the blessings of the past year. These gubernatorial invitations to pray, though intended to reach all citizens, were often addressed to Christians alone. In the minds of the chief executive of the state, the people were all Christians. Governor Morril (Morrill) of New Hampshire issued such an invitation in 1824 reminding the men and women to whom he addressed his appeal: “We live in a Christian country.” Morril was a physician and a Congregational clergyman. One may well doubt whether there was any intent to reject the Jews as such; the Jews were so few in number that governors or their secretaries never bore them in mind, but when alerted by angry Jews, most executives hastened to make their apologies. Some of the excuses offered were full and sincere; others were evasive. An occasional erring governor honestly believed that this was a Christian country, constitutionally. Sometimes there was an intimation that Jews would do well to appreciate the tolerance accorded them. In 1812, the governor of South Carolina, Henry Middleton, called on all Christian denominations and their clergy to hold services. When reproached by the Jews, he pleaded that his sectarian appeal was an oversight. A later governor of that same state, James H. Hammond, invited the citizens of all denominations to offer up their devotions to God and his son Jesus Christ, the Redeemer of the World (1844). When Charleston Jews protested very vigorously—“We demand our rights”—he refused to apologize, reminding them that this was a Christian land and that their ancestors had crucified Jesus Christ. Hammond was one of the very few officials who refused to make amends; he persisted in disregarding Jewish sensibilities.41

In 1848, Governor William F. Johnson of Pennsylvania appealed to all denominations of Christians to gather together in Thanksgiving prayer and to supplicate the Redeemer to forgive their sins. The Jews wrote to ask why they were excluded, and the governor hastened to assure them that he had “many personal and political friends” among the Israelites. The following year, New York’s Governor Hamilton Fish addressed himself only to Christians. The Jews responded by refusing to hold Thanksgiving services in any of the city’s numerous synagogs. Fish’s call to prayer the following year in 1850, was more discreet, and this time the Jews responded by opening their houses of worship. Fish ended up as Secretary of State for Grant in Washington and certainly came to know Chief Justice Salmon P. Chase (1864–1873). Earlier, Chase had served as governor of Ohio, and, in 1856, had addressed the Christian citizenry of the state in a proclamation which aroused the ire of the belligerent editor of the Cincinnati Israelite, Isaac Mayer Wise. Chase, a pious Christian, had forgotten that Cincinnati then sheltered the largest Jewish community west of the Alleghenies, but Wise was quick to remind him. Though the two were friendly, Wise, a Democrat, resented a Republican, Chase, talking in terms of “Redemption” when among the German Republican leaders were a number of left-wing Forty-Eighters, some of them atheists. Chase, evasive in his reply, politely adhered to his use of Christian people, but reminded Rabbi Max Lilienthal, who had also voiced his chagrin, that in addressing the Jews a year earlier he had said: “Our creeds are many; our Father is one.” This bland reply certainly did not satisfy Wise. Chase’s proclamation, he said, was “unrepublican”; it violated the Bill of Rights of the constitution of Ohio.42

The governors of different states continued to make their “Christian” appeals well into the twentieth century. The Denver News in 1865 warned the Jews in Colorado Territory not to protest; they would do well to bear in mind that they were outnumbered ten to one. Courteous executives continued to explain that “Christian” was a synonym for “civilized.” In the second quarter of the twentieth century the governors of Connecticut and Ohio called on the citizens to observe Good Friday because the “lowly Nazarene” had “rescued the world from utter darkness”; the “teachings of Jesus” would ultimately prevail. On May 2, 1943, with the realization of the horrors of the German Holocaust in mind, a number of governors issued proclamations calling for a Day of Compassion, asking the people to go to church and pray for the Jews of Europe. Was this religious appeal a breach in the wall between church and state? By the second half of the twentieth century, chief executives of the different states were no longer issuing religious proclamations asking their people to fast or feast. It now became the privilege of the President to call on the citizens of all the states to raise their voices in thanksgiving. These national calls to prayer were always couched in general terms; there were now almost 6,000,000 Jews in the country; millions of Jews were voters.43

SUNDAY LEGISLATION

Proclamations inviting Christian citizens to meet in prayer, New Testament readings in the schools, consanguinity laws in conflict with the Hebrew Bible and Jewish tradition, blasphemy laws—none of these vitally injured American Jews. Sunday laws, however, were an everpresent danger, for they threatened the very livelihood of observant Jews, who had already kept their businesses closed on Saturday, the seventh day of the week. Such discriminatory laws were no novelty to the Children of Israel. Many American Jews, originally immigrants, were well-acquainted with Sunday laws in the European lands of their birth. In seventeenth-century Dutch Brazil, whence the first American Jewish settlers came, and in Dutch Surinam of the 1600’s and the 1700’s, Jews had been exposed to Sunday-law restrictions. In Brazil, they had to close their shops and their schools, too, on the Lord’s Day; the Surinamese even made an effort to keep the Jews from working their plantations on the first day of the week. In New Amsterdam, Abraham De Lucena opened his store on a Sunday, when the sermon was being preached. He was threatened with a fine of 600 guilders, an enormous sum, but there is no record that the fine was ever paid. This was 1655; yet three years later, when Jacob Barsimson, the first known Jew in New Amsterdam, refused to go to court on his Sabbath, no default was entered against him because of his religion; Saturday was apparently recognized as his day of rest. In 1664, James, Duke of York, conquered New Amsterdam and New Netherland. The Sunday laws to which the Jews were thenceforth subject in New York were British rather than Dutch. With the Duke’s brother, Charles II, on the throne, the English Parliament in 1676 passed a Sunday law which was to influence profoundly all similar statutes in English North America down to the present day. The British colonies were all juridically Christian, and all of them had Sunday laws which were enforced with punishments which were often severe. In a few colonies, fractious offenders could even be executed, in theory at least. Some of the Sunday offenses were non-church attendance, profaning the Lord’s Day, desecrating Sunday by traveling, walking for amusement, performing labor, or engaging in amusements.44

Patterning itself on rabbinic law, one of the colonies insisted that the Sabbath began at sundown the preceding evening. The New England poet John Maylem paid his devoirs to this “fence to the law”:

in this one act, they think to merit Heav’n,

By taking half a day from six, and adding it to seven.

In 1668, Solomon, a Jew, traveling toward New Hampshire on Sunday, was arrested and no doubt fined. Had he been a Christian, he would have been arrested with equal celerity. In colonial days, the law was directed primarily against Christians derelict in their religious practices. There were then only a handful of Jews in all New England; they were generally ignored, but wherever they were they were always expected to conform to local ordinances. In eighteenth-century colonial New York, so it is reported, a Jew was compelled to accept the onerous job of constable. He resented it and on the Lord’s Day, therefore, enforced the laws in all their severity to the dismay of the Christians. Whenever a servant went out to pump water, he confiscated the pail. He stopped all work on that day until the city finally decided that it was the better part of wisdom to replace him with another constable. Did the Jews in prerevolutionary days protest against the rigorous Sunday closing laws which burdened them financially? There is no record that they did. They would not have dared to do so; they were second-class citizens, infidels, in a Christian land.45

Though the federal Constitution and its amendments forbade the “establishment” of any religion in the United States and implied that all faiths were equal in the eyes of the law, Sunday ordinances were enforced. There are no national federal laws with respect to Sunday observance; none was ever passed, though Christianity even today is “established” informally. The Constitution in Article 1, Section 7, does recognize Sunday as a special non-business day. Very few Jews were in the federal service; there are no records of complaint about being compelled to work on Saturday; government marshals—and there was a Jewish marshal—may have been free agents to a degree. The new republic brought little relief to Jewish Sabbath observers in the individual states. The states had inherited their Sunday laws and automatically continued many of them, though modifing them with respect to punishments and penalties. If appeals were made by a Jew after a conviction for a violation of the Sunday laws, most higher courts upheld the decisions already rendered. The number of cases of Jews arrested and fined for violating these local enactments are very few in the early republic. It is very probable, however, that most arrests and trials for infractions have not been recorded or reported. Many Jews kept their shops open on Saturday in order to make a living, thereby of course violating or ignoring their own Jewish day of rest. Some successfully evaded state laws and kept their stores open on Sunday, if only surreptitiously. A few kept closed on Saturday and opened on Sunday, exposing themselves to arrests, trials, and penalties.

A few months after the Declaration of Independence, the grand jury in Charleston, South Carolina, issued a statement condemning Jews for opening their shops and selling goods on Sunday, thus profaning the Lord’s Day. What seemed to worry these Christians particularly was not so much the violation of the closing law but the fact that Jews were employing their black slaves as clerks. Several years later, a Richmond Jew was reproached for opening his store on Sunday and selling to slaves. The fear expressed here was that slaves would be encouraged to steal from their masters. The very year that Madison and his associates secured the passage of Jefferson’s Bill for Establishing Religious Freedom, this same Madison sponsored a Sunday closing law to punish “Disturbers of Religious Worship and Sabbath Breakers.” In 1788, in a debate on a Sunday-closing bill in the New York state legislature, a liberal-minded member caustically reminded the pious that if Jews were ever to become a majority in the state they could penalize Christians for violating their Sabbath. Nevertheless, the bill passed, 34 to 5. At Philadelphia, in 1793, Jonas Phillips was fined £10 for refusing to take the oath in court on his Sabbath. This American intolerance stands out in sharp contrast to the action of the often more intolerant Dutch who excused Jacob Barsimson from appearing in court on the Sabbath. In 1816, again in Philadelphia, Abraham Wolf was arrested for engaging in business on Sunday. He pleaded that the Ten Commandments called upon him to work six days a week; Sunday was the first day of the week—therefore, a day on which he was required to labor. The court ignored the defendant’s unique plea and reprimanded him for showing “contempt and abhorrence of the religious opinions of the great mass of citizens.” Massachusetts in the 1820’s still reprinted its laws prohibiting profane music and dancing on the Lord’s Day.46

By the late 1820’s, the Protestant Church had begun to flex its muscles. Fearful of the growth of Catholicism and the coming of the Irish, it set out to keep the United States Protestant. This age of Jackson saw a growing antagonism to Puritan concepts of an austere Sunday: industrialization was developing; workers wanted to relax on their day of rest; Catholics and Central European immigrants had their own concept of a permissive continental Sabbath; secularism, liberalism, and humanitarianism were blossoming. Thus, opposition to the traditional Sunday laws was growing. Faithful Protestants were determined not only to bolster Sunday observance, but also to use their influence to compel the federal government to aid them. By 1828, the devout took action; they organized a General Union for Promoting the Observance of the Christian Sabbath. The Union was not modest in its first objective. It launched a major crusade, an attack on Sunday mail deliveries. This drive, which had its roots in Puritan laws against travel on the Lord’s Day, was soon in full swing. The 1828 campaign against Sunday mail delivery and in defense of a quiet Sunday continued for almost a generation. The churchmen were set on stopping the transport of mail and keeping the post offices closed on the Lord’s Day. That the crusaders were not without influence is documented by their attack on Andrew Jackson, who was said to have started a long journey on a Sunday. Jackson was compelled to defend himself by proving that he had left the Hermitage on a Monday.47

In response to a series of Protestant petitions, the Senate referred the issue to the Committee on Post Offices and Post Roads. The committee report was presented January 19, 1829, by its chairman Senator Richard M. Johnson of Kentucky; Johnson also presented a second report in 1830 (by that time, he was serving in the House after having been defeated for reelection to the Senate). Johnson spoke for both committees in rejecting the demands of the churches. Denial of the petitioners’ request meant that he and his colleagues had chosen to emphasize the United States government as a civil and not a religious institution; it had no right to interfere in religious matters. All citizens, including Jews and Christian Sabbatarians, had to be considered; Jews were as free as Christians and entitled to the same rights; the Constitution regarded the conscience of the Jew as sacred as that of the Christian. This statement was made at a time when there were not 10,000 Jews in the United States. Not all ministers were opposed to Sunday mail. An Episcopal clergyman, later a New York bishop, frowned on the whole Stop-the-Mail Movement; he was an egalitarian who wanted to keep religion out of politics. One of the main reasons the anti-Sunday mail crusade met with resistance in Congress is that it threatened industry, the fast developing transportation system, and large-scale commerce and business. The churchmen lost out; they forgot to “render … unto Caesar the things which are Caesar’s” (Matt. 22:21).48

Despite the defeat of the congressional Sunday mail bills, Jews in the 1830’s continued to run afoul of the Sunday laws. The Jews claimed certain exemptions because of religious scruples. In Pennsylvania, in 1831, a Jewish plaintiff wanted continuance of a case which was called for Saturday. The judge told him that the law was a superior moral force; the right to be excused lay at the discretion of the court. For reasons that seemed compelling to the judge—no bigot, incidentally—the continuance in this particular instance was not granted. When arrested for keeping his store open on Sunday, Alexander Marks, of Columbia, South Carolina, cited in vain the first amendment of the federal Constitution and its guarantee of religious freedom. The court’s response was that the local enactment under which he was charged served to further law and order and to benefit society as a whole. Another victim, fined for a Sunday sale, was blandly told that he had no complaint, for he was not compelled to violate his Jewish Sabbath. Leeser disclosed in his Claims of the Jews to an Equality of Rights that, in 1838, the Jews of Philadelphia were determined to protest to a Pennsylvania constitutional convention, then sitting, against current Sunday-closing legislation. There should be no penalties for any Sabbatarians who worked on the Lord’s Day, the first day of the week; it was unconstitutional to force Jews to observe the Sabbath of the majority. Accordingly, they wrote a memorial on this subject, but at the last moment decided not to present it. It is not improbable that they were frightened by the rising tide of reaction and decided that discretion was the better part of valor. The effects of the panic of 1837 were being keenly felt; anti-black riots were not infrequent, and the Jews may very well have feared attracting the attention of a mob that frowned on “free discussion,” Indian rights, woman suffrage, and abolition. The political climate in Philadelphia at this time was no healthy one, for three months after the petition for civil equality was written, mobs burnt Pennsylvania Hall, which had just been dedicated to liberty and to the rights of man, and then razed a black orphan asylum.49

The Protestant churches were never to stop trying to enforce Sunday observance throughout the nineteenth and early twentieth centuries. On a state level, the Sunday-closing crusade was by no means unsuccessful, for by 1850 forty railroad companies on about 4,000 miles of track had agreed not to run their cars on Sunday. As late as 1894, the highest court in Maryland said that “Ours is a Christian community and the day set apart as the day of rest is the day consecrated by the resurrection of our Saviour.… there is all the more reason for the enforcement of the laws that help to preserve it.” On Sunday, May 1, 1904, the Baltimore police swooped down on a Jewish home where some girls were busily engaged in a manufacturing process. Hauled off to court in a patrol wagon, they found themselves enjoying the same ride frequently given prostitutes and gamblers caught in a raid. Shortly before 1911, the National Reform Association, the Sunday observance group, published a shaded map in which they showed that every state and territory in the Union, with the exception of two, had enacted Sunday laws of greater or lesser severity. In the more lenient states—about half—concessions were made to Sabbatarians, both Jews and Christians.50

THE SUNDAY LAWS: A COMMENTARY

Sunday-law disabilities puzzled some foreigners who knew America as the land of the free. A German, writing on the United States in the 1790’s, remarked: “In a country of universal tolerance, it is strange that Jews are forced to keep their shops closed on Sunday.” A few years earlier, in 1788, some Christians, commenting on the standard declarations that a Jew working on Sunday offended his Christian neighbors, answered that a Christian working on the Sabbath offended his Jewish neighbors. Christians throughout the centuries have insisted that the Lord’s Day be observed. They failed to recall that their Lord was a Jew who had observed the Sabbath, not Sunday. Some Jews must have smiled sardonically at the thought that the courts traced their sanction for the observance of a day of rest to the Jewish Sabbath and then, in keeping with the Christian church, urbanely and arbitrarily transferring the Sabbath from the seventh to the first day of the week, threatened to punish any Jew refusing to desist from work on a day which had no special sanctity for him. It is not improbable that in some towns and cities the Sunday laws were a dead letter, but more frequently they were enforced, disabling Jews who had already closed their shops on Saturday. Christians argued that this was a Christian country, that it was the duty of the state to assure the welfare of the religious majority, and that this majority had the moral right to exercise its prerogative of passing laws in order to enforce a day of rest. The Jews must not give offense through work or trade by desecrating the holy day.51

Jews were angry; it was their contention that the Sunday laws violated the first amendment of the federal Constitution and the Bill of Rights of almost every state. They were penalized because the Protestant churches were trying to force Christians to go to church. In their campaigns to keep the first day of the week holy, the churches were supported by many Americans, very probably a majority, who looked upon Sunday as a national day of rest even if they themselves did not attend worship services. The masses, worshipping at the altar of civil religion, were persuaded that Christianity through its chaplains, its holidays, its Sunday rest, was a vital component of the American polity. On the other hand, there were also citizens who set out consciously, deliberately, vigorously, to keep church and state apart and were opposed to any type of legislation that would make Sunday a religious holiday. These were Gentile political liberals and Christian Sabbatarians who feared that the Protestant sectarians were again trying to unite church and state and threaten the very heart of the first amendment. Until the Civil War, the motivation for compelling conformity to the Sunday laws was unashamedly religious; later, the rationale employed to make Jews and others observe these laws was that such statutes were police ordinances to further health, safety, and morals, but this was only a subterfuge; the motivation even today is religious and Christian. In origin, few—if any—of the Sunday ordinances were anti-Jewish; it is equally true that there was rarely any appreciation of the sensitivity of Jewish religionists to this issue. The Jew’s answer to the Christian world was that, constitutionally and legally, this was not a Christian country; Christianity was not part of the common law; there was no established church or union of church and state. No state or municipality had a right through legislation to compel conscientious and observant Jews to abstain from work or business on Sunday and thus cripple them economically by compelling them every week to refrain from work on a day which meant nothing to them.52

Additional Information

ISBN
9780814344682
Related ISBN
9780814344699
MARC Record
OCLC
1055143335
Pages
494-524
Launched on MUSE
2018-10-02
Language
English
Open Access
Yes
Creative Commons
CC-BY-NC
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