Not until December 20 was the report of the committee on the bill of rights taken up in committee of the whole. Debate immediately centered on the aggravating third article. After the delegates endorsed the recommendation to strike the antiquated provision empowering the legislature to enjoin attendance at religious worship, Leverett Saltonstall moved that except for two further amendments of a minor nature the third article be left undisturbed. The Salem attorney and legislator with an old Massachusetts name was a prominent member of the small eastern conservative group that dominated the convention. So too was Samuel Hoar, Jr., of Concord, who spoke in favor of Saltonstall’s motion. Enoch Mudge, a delegate from the incipient industrial center of Lynn, in Essex County, then explained why he opposed the motion.
The next day the motion was passed over in favor of Childs’s resolution, which would more clearly test the opinion of the convention on the basic issue. Henry Halsey Childs came from the Berkshire town of Pittsfield, long a center of religious liberalism and Republicanism. A physician by profession, he also served in the legislature from 1816 to 1827. The debate lasted two days. Many delegates spoke for the substitute. The remarks of a dissenting minister from Beverly, N. W. Williams, were particularly pointed. Saltonstall delivered the longest and most forthright speech against the motion. Soon after he finished, the question was called, the motion defeated.
MR. SALTONSTALL moved to amend the report by striking out the third and fourth resolutions, and substituting a resolution declaring that it is not expedient to make any further amendment to the third article of the declaration of rights than to substitute the word “Christian” for “Protestant,” and also to provide that real estate shall be taxed for the support of public worship in the town, parish or precinct in which it shall be situated.
MR. HOAR of Concord said it appeared to him, that the amendment proposed by the gentleman from Salem, must necessarily bring the whole subject of the third article into discussion. If it should be adopted, it would show that the committee were in favor of the article as it now stands, in preference to the substitution proposed by the select committee, or by the gentleman from Chester [Mr. Phelps], or from Pittsfield [Mr. Childs], and to any other which may be off ered. He was desirous that the present amendment might be adopted. He was on the select committee, but did not vote with the majority in reporting these resolutions. If they were wrong, therefore, he was not responsible for their defects, and if right, he was entitled to no part of the credit. He considered the alteration proposed by the report of the committee to be in substance pernicious. It was going to change one of the fundamental principles of our government. If there was in our constitution one principle more than another on which the public happiness and welfare depended, and which was entitled to greater favor, he thought it was this; and it was here peculiarly proper to call on gentlemen for an application of the rule so often brought forward, that before any principle in the constitution was changed, it ought to be shown clearly and decisively that experience had proved it capable of producing an ill effect on the community. If this was acknowledged to be an important and an operative principle and not a dead letter, and if the effect produced by it was not a bad one, but the contrary, it ought to be retained. He was unwilling to destroy the effect of this principle. We had had experience of its beneficial operation, not for forty years only, but for more than a century; and he would not exchange this experience for any theory however wise in appearance. Theory might deceive, but experience could not. And if any experience was useful, that of the particular community for which the constitution was intended, was to be preferred. Although other countries may have been able to do without this principle, it by no means followed that it would do no good here. He knew that a distinguished individual in Great Britain had professed his ability to make constitutions and laws for all latitudes, and all habits and manners that could be named; he should however give more credit to our own experience. If gentlemen who wish a change should show the operation of the third article to be prejudicial to this country, he should cheerfully vote with them; otherwise he should think it ought to be retained. He said it had been judicially determined that by the law of 1811, real estate, belonging to non-resident proprietors of a different sect or denomination, cannot be taxed for the support of public worship in the town where it is situated. This report proposes to extend to all Christians, the rights which were peculiar to persons of a different denomination from Congregationalists. It gives power to a Congregationalist, for any reason, to change his religious instructor, and prevents his being taxed in any place except where he attends public worship; the consequence will be, that all lands of non-resident proprietors will be exempted from taxation for the support of religious worship in any place. Was not this a great evil? He could name towns in which one third part of the land was owned by citizens of different towns, and was assessed for the support of public worship in the towns where it was situated. Deduct this portion of the taxes, and in many towns it would in a great degree derange their system of supporting public worship. It might be supposed that this evil would be remedied on account of tenants being liable to be taxed. But there were a great many towns to which he referred, where the lands were not occupied by tenants, but used by the non-resident owners merely as pastures for cattle. Another inconvenience and injustice would arise from adopting the report that these lands would escape all taxation, as the assessors in the towns where the owners lived would not know of lands so situated, or would be ignorant of their value. For this reason alone, the report ought not to be accepted, and it was incumbent on those in favor of it, to show something equivalent to the derangement to the system of taxation. But although this inequality would be created by the report, yet this was but the dust of the balance, compared with the rest of the consequences… . Mr. H. spoke of the detriment which would happen to that class of society who depend for their religious instruction on public worship. He spoke only as a citizen and not as a divine. He considered religious instruction, in a political point of view, to be as necessary as literary instruction. It might be said that religion would be supported voluntarily. He wished for better evidence of the fact than he had had; and if true now, it might not be hereafter. Much had been said about inalienable rights; he asked if this meant that society could not do what was most for its good? If a man could not give up any rights for his greatest benefit? No interference with the rights of conscience was intended or felt from the first article. To say that the Legislature shall not regulate anything relating to religion, was to say that they shall not encourage any virtues or punish any vices or crimes. If we could trust to anything in history, it was to this, that our prosperity, and what most distinguishes Massachusetts, is owing to our provision for the support of religion and morality. He considered these a great support of civil society. He believed the only alternative was, to support it by religion and morality, or by a standing army. The proposition of the gentleman from Salem, was only to leave the constitution where it was before. It was not to repeal the law of 1811, which he considered as a bad law, but only to leave the Legislature the power, if necessary, instead of tying up their hands for all future time. He compared the provision for religious worship to that for town schools: those who have no children pay as great a tax as if they had; and if any person, having children, is not satisfied with the schoolmaster appointed by the town, he takes away his children, but never thinks of withholding his money from the support of the town schools; and yet the principle is the same; it is in fact a stronger case; for a man may withdraw to any religious society, and pay his money where he pleases, only he must pay somewhere… .
MR. MUDGE was opposed to the adoption of the amendment of the gentleman from Salem [Mr. Saltonstall], because it would tend to introduce great confusion and evil. It proposed to give power to societies to tax real estate. Persons of all denominations have made that provision for the support of public worship which they think necessary. They do not wish to incur the trouble and expense of assessing taxes, that they may draw them out for the support of religious worship which they have already provided for in other modes. The arguments which the gentleman who had last spoke had used were precisely those which he would have used, to show that the provisions of the constitution ought not to be retained. He could show in every part of the Commonwealth instances in which great injustice and oppression had been suffered by individuals; he could point to an individual on the floor who had had his property taken from him to the amount of 300 dollars for the support of public worship in a form which he did not approve. But who shall be entitled to the right of taxing the whole property of the Commonwealth? In the town to which he belonged there were five distinct religious societies. Which of them should have the right to impose this tax?