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The Surviving Religious Test Washington University Law Review Volume 18 Issue 2 January 1933 The Surviving Religious Test Frank Swancara Denver Bar Association Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Civil Rights and Discrimination Commons, and the Constitutional Law Commons Recommended Citation Frank Swancara, The Surviving Religious Test, 18 ST. LOUIS L. REV. 105 (1933). Available at: https://openscholarship.wustl.edu/law_lawreview/vol18/iss2/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. THE SURVIVING RELIGIOUS TEST THE SURVIVING RELIGIOUS TEST BY FRANK SWANCARA Mr. Mechem in his classic work on Public Officers wrote that "it is well settled that religious beliefs or opinions can not be a test of political rights and privileges."1 This statement is true only in a restricted sense. While no public officer need believe in any doctrine which is peculiar to some particular sect, yet in many states one is not eligible to public office unless he possesses the religious belief which at common law was required of witnesses. Generally this situation results from the constitutional require- ment of an oath of office. To understand the current American law on this subject it is necessary to know what religious beliefs were required by the common law for the taking of a valid oath. In the early stages of the development of the common law only those who believed in all the tenets of the Catholic Church were allowed to take an oath.2 This intolerant view was natural in days before the Reformation when the Church and state were very closely inter- twined. This harshness was only slightly relaxed in the time of Lord Coke. In Calvin's Case3 the Lord Chief Justice announced that "only a Christian" could take an oath. To support his posi- tion, Lord Coke invoked the Bible as the foundation of the Com- mon Law, citing the text, "And what concord hath Christ with Belial? or what portion hath a believer with an unbeliever? '' 4 When the famous case of Omichund v. Barker5 arose in 1744, Lord Chancellor Hardwicke announced during the course of the argument by counsel that Lord Coke's rule was impolitic and that its enforcement would "destroy all that trade and commerce from which this nation reaps such great benefits". This materialistic argument was strengthened by the observation that it was very IMechem, Public Officers (1890) 40. 2 Bracton, fol. 16; Briton, Challenge de Jurors c. 53 p. 135. (1609) 7 Co. Rep. 17b, 77 Eng. Repr. 397. 4 1I Corinthians 6:15. 5 (1744-1745) 1 Atk. 21, 26 Eng. Repr. 15 or Willes 538, 125 Eng. Repr. 1310. The argument of counsel in this case was continued from term to term during the years 1744 and 1745. The report in Atkyns gives the arguments of counsel at considerable length. Washington University Open Scholarship ST. LOUIS LAW REVIEW doubtful historically if Jews were barred as witnesses at the time in which Lord Coke lived.6 All the judges agreed that a person who believed in the Gentoo religion could take an oath. Un- fortunately, none of them agreed upon the same test as the one by which future cases were to be decided. This situation is made worse by the fact that there are two reports of this case which differ in several material particulars. According to the con- temporary report published by Atkyns, the Lord Chief Baron of the Exchequer (Parker) considered it enough if the witness believed in a God whom he regarded as the Creator of the Uni- verse. Even more liberal views were entertained by Lee, Lord Chief Justice of the King's Bench, who intimated that perhaps in certain cases even atheists might be sworn. Lord Chancellor Hardwicke's opinion is vague. He apparently would require a belief in God and His providence, but under this view God must be thought of as a being who consciously gives rewards and punishments. The opinion of Willes, the Lord Chief Justice of the Common Bench, is the one whose language is most frequently cited. In it he declares that all persons must believe in a God and also that this God has power to give future rewards and pun- ishments in the next world. In the other report of this case, which was not published until 1800, but was based on manu- scripts given by the grandson of Willes to the reporter, only Willes' opinion is given.7 Besides certain merely verbal changes ind changes in the paragraphing of the opinion, the meaning of the proposed test has been radically altered. This report would allow the rewards and punishments to be given either in this world or the next. The conclusions of the Court may be sum- marized as follows. All the judges, except the doubtful Lee, re- quire a belief in God. Two of the four require that the God be capable of punishing wickedness. None of the judges require a A new Biblical text was also found. "Then Peter opened his mouth and said, Of a truth I perceive that God is no respector of persons; but in every nation he that feareth him, and worketh righteousness, is accepted with him." Acts 10:34-35. 7The Supreme Court of Connecticut expressly ruled that the report of Atkyns is correct. Atwood v. Welton (1828) 7 Conn. 66. Most American courts in the early cases adopted the test laid down by Chief Justice Willes as reported by Atkyns. See Frank Swancara, Non-Religious Witnesses, 8 Wis. Law Rev. (Dec. 1932), p. 3. https://openscholarship.wustl.edu/law_lawreview/vol18/iss2/2 THE SURVIVING RELIGIOUS TEST belief in a future life, unless the Atkyns report of Willes' views is correct. Such was the state of the common law when the American col- onies successfully revolted. Although many of these colonies had been founded by persons attempting to escape religious persecu- tion in England, nevertheless their colonial history is full of ex- amples of religious bigotry. Under these conditions it is surpris- ing that the earlier State constitutions contained express reli- gious tests. In Georgia,8 New Jersey, 9 North' 0 and South Caro- lina,"l and Vermont' 2 all office holders were required to believe in some form of the Protestant religion. In New Hampshire the governor and all members of the legislature must be Protestants. 3 5 In Massachusetts 1 and Maryland' all public officials had to de- clare on oath their belief in the Christian religion. In Pennsyl- vania16 and Delaware17 the officials must subscribe to a more complicated formula which involved an acknowledgement of the divine inspiration of both the Old and the New Testaments. Only in Connecticut, New York, Rhode Island, and Virginia were there no express religious tests. Some of these religious discrimina- tions showed astonishing vitality. The Maryland provision 'Constitution of 1777, Art. VI. On historical matters relating to state constitutions and religious tests, see Hale v. Everett (1868) 53 N. H. 9; Clarence E. Martin, The American Judiciary and Religious Liberty, 62 American Law Review 658; Dr. Robert Baird, Religion in America; Holy Trinity Church v. United States (1892) 143 U. S. 457. 9 Const. 1776, art. 19. "'Const. of 1776, art. 22. 1'Const. of 1778, art. 38. 12 Const. of 1777 ch. 1, art. 3. 13 Const. of 1784; James Fairbanks Colby, Manual of the Constitution of the State of New Hampshire. 14 Const. of 1780, ch. 6, art. 1. 15 Const. of 1776, art. 55. 16 The Pennsylvania test required "a belief in God, the Creator and Governor of the universe, the rewarder of the good and the punisher of the wicked" and an acknowledgment that the "Scriptures of the Old and New Testaments were given by divine inspiration." Const. of 1776, sec. 10. 17 In Delaware public officers were required to make and subscribe the following declaration: "I, A. B., do profess faith in God the Father, and in Jesus Christ, His only Son, and in the Holy Ghost, one God, blessed for ever- more; and I do acknowledge the Holy Scriptures of the Old and New Testa- ment to be given by divine inspiration." Const. of 1776, art. 22. Washington University Open Scholarship 108 ST. LOUIS LAW REVIEW lasted until 1851 while the more drastic New Hampshire require- ment was not repealed until 1877. The present constitutions of the various states prohibit re- ligious tests, in the sectarian sense, but preserve one requirement which is obviously religious. Pennsylvania 8 and Tennessee' 0 still expressly require of public officers a belief in God and a future 20 21 state of rewards and punishments. Arkansas, Maryland, Mississippi,2 2 North Carolina,23 South Carolina, 24 and Tex- as25 require a belief in the Supreme Being. In all states there is a constitutional provision to the effect that public officials must take an oath or affirmation. In most states there is also a provision that no person shall be denied any civil or 26 political right because of his rc'-igious opinions. Assuming, without conceding or discussing the point, that no violation of the Federal Constitution is involved, the courts would find no difficulty in applying provisions which require a belief in God.27 It is possible, however, that different conclusions might 18 Constitution of 1874, Art. I, sec. 4. 19 Constitution of 1870, Art. IX, sec. 2. This same constitution contains a provision that "no political or religious test, other than the oath to support the constitution of the United States and of this state, shall ever be required as a qualification to any office or public trust under this state".
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