What Oath (if Any) Did Jacob Henry Take in 1809?: Deconstructing the Historical Myths
Seth Barrett Tillman, What Oath (if any) did Jacob Henry take in 1809?: Deconstructing the Historical Myths, 61(4) AMERICAN JOURNAL OF LEGAL HISTORY 349-384 (2021) (peer review);
36 Pages Posted: 26 Apr 2021 Last revised: 24 Jan 2022
Date Written: February 21, 2021
On December 5, 1809, a motion was made on the floor of the North Carolina House of Commons to exclude Jacob Henry, who was Jewish, from his state legislative seat. The motion was bound up with the 1776 state constitution’s Protestants-only religious test (Article 32) and Henry’s qualification oath. On December 6, 1809, the Commons voted on the motion, and it failed: Henry kept his seat.
The Jacob Henry literature has been primarily concerned with two questions. First, why did the members of the Commons on December 6, 1809 vote against the motion to vacate Henry’s seat? That is, what motivated the members—in the sense of politics, partisanship, and personalities—to vote as they did? Likewise, what constitutional or other legal or policy rationales (if any) did the members put forward to explain their votes? A surprising number of very different views have been put forward. Second, what did Henry’s victory against purported religious intolerance mean to his contemporaries and later generations?
This Article addresses a different set of (albeit related) questions. The focus of this Article is not on what happened on December 5 and 6, 1809 and why the members of the North Carolina House of Commons voted as they did. Instead, the focus of this Article is on what happened on November 20, 1809—in other words, what legislative oath (if any) did Jacob Henry actually take when the legislative session first opened? Confusion on this point is endemic to the literature, in part because the widest number of scholars confuse test oaths and religious tests—the two are related, but they are not the same. Second, how have later historians and legal commentators described and distorted our understanding of the events of November 20, 1809? Third, why did the December 6, 1809 debate on the motion veer so far from any substantial discussion of the actual underlying events of November 20, 1809? Admittedly, this third question cannot be answered with clarity. And, fourth, having displaced some of the myths surrounding Jacob Henry and his oath, this Article reconsiders his position in the larger canon of American religious liberty.
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