Commentaries on the Constitution of the United States, by Joseph Story, 1833
Volume 3, Chapter 43, OATHS OF OFFICE – RELIGIOUS TEST – RATIFICATION OF CONSTITUTION
Sec. 1837. The next clause is, “The senators and representatives before mentioned, and the members of the several state legislatures and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation to support the constitution.1 But no religious test shall ever be required as a qualification to any office or public trust under the United States.”
Sec. 1838. That all those, who are entrusted with the execution of the powers of the national government, should be bound by some solemn obligation to the due execution of the trusts reposed in them, and to support the constitution, would seem to be a proposition too clear to render any reasoning necessary in support of it. It results from the plain right of society to require some guaranty from every officer, that he will be conscientious in the discharge of his duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those, who feel a deep sense of accountability to a Supreme being. If, in the ordinary administration of justice in cases of private rights, or personal claims, oaths are required of those, who try, as well as of those, who give testimony, to guard against malice, falsehood, and evasion, surely like guards ought to be interposed in the administration of high public trusts, and especially in such, as may concern the welfare and safety of the whole community. But there are known denominations of men, who are conscientiously scrupulous of taking oaths (among which is that pure and distinguished sect of Christians, commonly called Friends, or Quakers,) and therefore, to prevent any unjustifiable exclusion from office, the constitution has permitted a solemn affirmation to be made instead of an oath, and as its equivalent.
Sec. 1839. But it may not appear to all persons quite so clear, why the officers of the state governments should be equally bound to take a like oath, or affirmation; and it has been even suggested, that there is no more reason to require that, than to require, that all of the United States officers should take an oath or affirmation to support the state constitutions. A moment’s reflection will show sufficient reasons for the requisition of it in the one case, and the omission of it in the other. The members and officers of the national government have no agency in carrying into effect the state constitutions. The members and officers of the state governments have an essential agency in giving effect to the national constitution. The election of the president and the senate will depend, in all cases, upon the legislatures of the several states; and, in many cases, the election of the house of representatives may be affected by their agency. The judges of the state courts will frequently be called upon to decide upon the constitution, and laws, and treaties of the United States; and upon rights and claims growing out of them. Decisions ought to be, as far as possible, uniform; and uniformity of obligation will greatly tend to such a result. The executive authority of the several states may be often called upon to exert powers, or allow rights, given by the constitution, as in filling vacancies in the senate; during the recess of the legislature; in issuing writs of election to fill vacancies in the house of representatives; in officering the militia: and giving effect to laws for calling them; and in the surrender of fugitives from justice. These, and many other functions, devolving on the state authorities, render it highly important, that they should be under a solemn obligation to obey the constitution. In common sense, there can be no well-founded objection to it. There may be serious evils growing out of an opposite course.2 One of the objections, taken to the articles of confederation, by an enlightened state, (New Jersey,) was, that no oath was required of members of congress, previous to their admission to their seats in congress. The laws and usages of all civilized nations, (said that state,) evince the propriety of an oath on such occasions; and the more solemn and important the deposit, the more strong and explicit ought the obligation to be.3
Sec. 1840. As soon as the constitution went into operation, congress passed an act,4 prescribing the time and manner of taking the oath, or affirmation, thus required, as well by officers of the several states, as of the United States. On that occasion, some scruple seems to have been entertained, by a few members, of the constitutional authority of congress to pass such an act.5 But it was approved without much opposition. At this day, the point would be generally deemed beyond the reach of any reasonable doubt.6
Sec. 1841. The remaining part of the clause declares, that “no religious test shall ever be required, as a qualification to any office or public trust, under the United States.” This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government. The framers of the constitution were fully sensible of the dangers from this source, marked out in the history of other ages and countries; and not wholly unknown to our own. They knew, that bigotry was unceasingly vigilant in its stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those, who doubted its dogmas, or resisted its infallibility. The Catholic and the Protestant had alternately waged the most ferocious and unrelenting warfare on each other; and Protestantism itself, at the very moment, that it was proclaiming the right of private judgment, prescribed boundaries to that right, beyond which if any one dared to pass, he must seal his rashness with the blood of martyrdom.7 The history of the parent country, too, could not fail to instruct them in the uses, and the abuses of religious tests. They there found the pains and penalties of non-conformity written in no equivocal language, and enforced with a stern and vindictive jealousy. One hardly knows, how to repress the sentiments of strong indignation, in reading the cool vindication of the laws of England on this subject, (now, happily, for the most part abolished by recent enactments,) by Mr. Justice Blackstone, a man, in many respects distinguished for habitual moderation, and a deep sense of justice. “The second species, ” says he “of non-conformists, are those, who offend through a mistaken or perverse zeal. Such were esteemed by our laws, enacted since the time of the reformation, to be papists, and protestant dissenters; both of which were supposed to be equally schismatics in not communicating with the national church; with this difference, that the papists divided from it upon material, though erroneous, reasons; but many of the dissenters, upon matters of indifference, or, in other words, upon no reason at all. Yet certainly our ancestors were mistaken in their plans of compulsion and intolerance. The sin of schism, as such, is by no means the object of temporal coercion and punishment. If, through weakness of intellect, through misdirected piety, through perverseness and acerbity of temper, or, (which is often the case,) through a prospect of secular advantage in herding with a party, men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it; unless their tenets and practice are such, as threaten ruin or disturbance to the state. He is bound, indeed, to protect the established church; and, if this can be better effected, by admitting none but its genuine members to offices of trust and emolument, he is certainly at liberty so to do; the disposal of offices being matter of favour and discretion. But, this point being once secured, all persecution for diversity of opinions, however ridiculous or absurd they may be, is contrary to every principle of sound policy and civil freedom. The names and subordination of the clergy, the posture of devotion, the materials and colour of the minister’s garment, the joining in a known, or an unknown form of prayer, and other matters of the same kind, must be left to the option of every man’s private judgment.”8
Sec. 1842. And again: “As to papists, what has been said of the protestant dissenters would hold equally strong for a general toleration of them; provided their separation was founded only upon difference of opinion in religion, and their principles did not also extend to subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory, and auricular confession; their worship of reliques and images; nay even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignty of the kingdom, they cannot complain, if the laws of that kingdom will not treat them upon the footing of good subjects.”9
Sec. 1843. Of the English laws respecting papists, Montesquieu observes, that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt, that can possibly be done in cold blood. To this just rebuke, (after citing it, and admitting its truth,) Mr. Justice Blackstone has no better reply to make, than that these laws are seldom exerted to their utmost rigour; and, indeed, if they were, it would be very difficult to excuse them.10 The meanest apologist of the worst enormities of a Roman emperor could not have shadowed out a defence more servile, or more unworthy of the dignity and spirit of a freeman. With one quotation more from the same authority, exemplifying the nature and objects of the English test laws, this subject may be dismissed. “In order the better to secure the established church against perils from non-conformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are, however, two bulwarks erected, called the corporation and testacts. By the former of which, no person can be legally elected to any office relating to the government of any city or corporation, unless, within a twelvemonth before, he has received the sacrament of the Lord’s supper according to the rights of the church of England; and he is also enjoined to take the oaths of allegiance and supremacy, at the same time, that he takes the oath of office; or, in default of either of these requisites, such election shall be void. The other, called the test-act, directs all officers, civil and military, to take the oaths, and make the declaration against transubstantiation, in any of the king’s courts at Westminster, or at the quarter sessions, within six calendar months after their admission; and also within the same time to receive the sacrament of the Lord’s supper, according to the usage of the church of England, in some public church immediately after divine service and sermon; and to deliver into court a certificate thereof signed by the minister and church-warden, and also to prove the same by two credible witnesses, upon forfeiture of 500£, and disability to hold the said office. And of much the same nature with these is the statute, which permits no persons to be naturalized, or restored in blood, but such as undergo a like test; which test, having been removed in 1753, in favour of the Jews, was the next session of parliament restored again with some precipitation.”11 It is easy to foresee, that without some prohibition of religious tests, a successful sect, in our country, might, by once possessing power, pass testlaws, which would secure to themselves a monopoly of all the offices of trust and profit, under the national government.12
Sec. 1844. The seventh and last article of the constitution is: “The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same.”
Sec. 1845. Upon this article it is now wholly unnecessary to bestow much commentary, since the constitution has been ratified by all the states. If a ratification had been required of all the states, instead of nine, as a condition precedent, to give it life and motion, it is now known, that it would never have been ratified. North Carolina in her first convention rejected it; and Rhode Island did not accede to it, until more than a year after it had been in operation.13 Some delicate questions, under a different state of things, might have arisen. What they were, and how they were disposed of at the time, is made known by the Federalist, in a commentary upon the article, which will conclude this subject.
Sec. 1846. “This article speaks for itself. The express authority of the people alone could give due validity to the constitution. To have required the unanimous ratification of the thirteen states, would have subjected the essential interests of the whole, to the caprice or corruption or a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable.
Sec. 1847. “Two questions of a very delicate nature present themselves on this occasion. (1.) On what principle the confederation, which stands in the Solemn form of a compact among the states, can be superceded without the unanimous consent of the parties to it? (2.) What relation is to subsist between the nine or more states ratifying the constitution, and the remaining few, who do not become parties to it?
Sec. 1848. “The first question is answered at once, by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature, and of nature’s God, which declares, that the safety and happiness of society, are the objects, at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found, without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the confederation, that, in many of the states, it had received no higher sanction, than a mere legislative ratification. The principle of reciprocity seems to require, that its obligation on the other states should be reduced to the same standard. A compact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity, than a league or treaty between the parties. It is an established doctrine, on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others; and authorizes them, if they please, to pronounce the compact violated, and void. Should it unhappily be necessary to appeal to these delicate truths, for a justification for dispensing with the consent of particular states to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions, with which they may be confronted? The time has been, when it was incumbent on us all to veil the idea, which this paragraph exhibits. The scene is now changed, and with it, the part, which the same motives dictated.
Sec. 1849. “The second question is not less delicate; and the flattering prospect of its being nearly hypothetical, forbids an over-curious discussion of it. It is one of those cases, which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting states, yet the moral relations will remain uncancelled. The claims of justice, both on one side, and on the other, will be in force, and must be fulfilled; the rights of humanity must, in all cases, be duly and mutually respected; whilst considerations of a common interest, and above all, the remembrance of the endearing scenes, which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.”14
Sec. 1850. And here closes our review of the constitution in the original form, in which it was framed for, and adopted by, the people of the United States. The concluding passage of it is, “Done in convention by the unanimous consent of all the states present, the seventeenth day of September, in the year of our Lord one thousand, seven hundred and eighty-seven, and of the Independence of the United States of America, the twelfth.” At the head of the illustrious men, who framed, and signed it, (men, who have earned the eternal gratitude of their country,) stands the name of GEORGE WASHINGTON, “President and Deputy from Virginia;” a name, at the utterance of which envy is dumb, and pride bows with involuntary reverence, and piety, with eyes lifted to heaven, breathes forth a prayer of profound gratitude.
1. This clause, requiring an oath of the state and national functionaries to support the constitution, was at first carried by a vote of six states against five; but it was afterwards unanimously approved. Journ. of Convention, p. 114, 197. On the final vote, it was adopted by a vote of eight states against one, two being divided. Id. 313. The clause respecting a religious test was unanimously adopted. Id. 313.
2. The Federalist, No. 44; 1 Tuck. Black. Comm. App. 370, 371; Rawle on Constitution, ch. 19, p. 191, 192.
3. 2. Pitk. Hist. 22; 1 Secret Journ. of Congress, June 25, 1778, p. 374.
4. Act of 1st June, 1789, ch. 1.
5. Lloyd’s Debates, 218 to 225; 4 Elliot’s Debates, 139 to 141.
6. See also M’Culloh v. Maryland, 4 Wheat. R. 415, 416.
7. See 4 Black. Comm. 44, 59, and ante; Vol. I, § 53.
8. 4 Black. Comm. 52, 53.
9. 4 Black. Comm. 54, 55.
10. 4 Black. Comm. 57.
11. See also 2 Kent’s Comm. Lect. 24, (2 edit.) p. 35, 36; Rawle on the Constitution, ch. 10, p. 121; 1 Tuck. Black. Comm. App. 296; 2 Tuck. :Black. Comm. App. Note (G.), p. 3.
12. See ante, Vol. II, § 621.
13. Ante, VoL. I, § 279.
14. The Federalist, No. 43.
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