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Moses Michael Hays was a successful merchant and a member of the Hebrew Congregation in Newport, Rhode Island from 1769 until the British occupation of the city in December 1776. He was also a Mason and would eventually found a number of Scottish Rite Masonic lodges in New England. By spring of 1776, it was clear that the colonies were going to war with England to gain their independence. Newport was a leading port in England’s American colonies. Every Rhode Island colonist was challenged to take a side.
On July 11, 1776, one week after the Continental Congress declared independence, Newport’s patriot militia accused Hays and some sixty other Newporters of possibly being “inimical” to the colonial cause. Upon independence, Rhode Island’s revolutionary legislature passed a bill allowing any individual to accuse a fellow citizen of disloyalty to the revolutionary cause. Once accused, any suspect had to appear before the new state’s General Assembly and swear an oath of allegiance to the cause.
The Assembly was well aware that, in religiously diverse Rhode Island, not every citizen could, in good conscience, swear an oath. Quakers, for example, do not swear oaths on the grounds that taking an oath implies that they might otherwise be lying; their religious scruples demand truth at all times. Some Jews also refuse to swear civil oaths, holding that oaths are sacred and reserved for promises made to God alone, not one’s fellow humans.
What the Rhode Island General Assembly wanted from Hays was his pledge of loyalty to independence and the newly-declared state. Hays could easily have met their requirement. Writing to a correspondent only a month earlier, Hays had affirmed the justness of the patriot cause. However, when charged with being “inimical” to independence by unnamed sources, Hays refused to take the oath. When he was brought before the General Assembly on July 12, 1776, he spoke the following words:
I have and ever shall hold the strongest principles and attachments to the just rights and privileges of this my native land. … I decline subscribing to the Test [that is, to take the oath] at present for these principles: First, that I … call for my accusers and proof of conviction, Second, that I am an Israelite and am not allowed the liberty of a vote, or a voice in common with the rest of the voters … Thirdly, because the Test is not general … and Fourthly, … the General Assembly of this [colony has] never in this contest taken any notice or countenance respecting the Society of Israelites to which I belong.
Hays’ first and third objections are based on English common law, or what we call the due process of law – the right to face one’s accusers and to have equal protection under the law. Hays might have rested his case against the oath entirely on his rights under common law.
But common law is an English principle, and Hays was living in a newly liberated nation that had not yet declared English common law its own. So Hays also based his defense on being a Jew, and the relationship between his religious identity and his status as a citizen in a new nation based on individual liberty. At that time, Jews could not vote or hold office in Rhode Island, even though they were free to worship. “I am an Israelite,” Hays noted, and am not allowed the liberty of a vote, or a voice in common with the rest of the voters,” Hays was setting out a challenge: if loyalty was wanted from him, then he should enjoy full civic participation in return. His complaint expanded his personal grievance to encompass all the Jews of Rhode Island, so it was not simply personal. “The General Assembly of this colony has never in this contest taken any notice or countenance respecting the Society of Israelites to which I belong,” he noted, registering a grievance on behalf of the four hundred or so Jews in the new state.
What Moses Michael Hays did on July 12, 1776 was challenge Rhode Island to grant Jews full membership in the body politic, so long as they were law-abiding citizens. Here were Jewish citizens being asked to swear allegiance to a cause that insisted upon “no taxation without representation,” but imposing that very thing on its Jewish minority. Judaism was tolerated in Rhode Island. Jews could practice their religion, build their synagogues, conduct rituals and observe holidays. Their practice of religion was surely free. Compared to other nations at the time, say Spain or Portugal, this was indeed a blessing. But being a Jews remained a civil disability. Jews were thus tolerated, but not free.
After his presentation to the assembly, Moses Michael Hays heard nothing. Five days later, on July 17, he delivered a second petition to that body, saying, “I ask of your Honors the Rights and Privileges due other free citizens … and again implore that the justice of your Honors may interfere in my behalf and will give me leave again to call for the cause and my accusation of Inimicality, that I may have an opportunity of vindication.” Still, he heard nothing back from the Assembly. Perhaps the Assembly did not want to adjudicate Hays’s defense in open session, or was persuaded by his arguments. By their silence, then, Hays became a patriot by default without signing the oath. However, he still could not vote in Rhode Island.
Five months later, Hays fled for Boston in the face of British occupation of Newport. There, he led a most distinguished life representing Judaism to a city that was far less tolerant than Newport.