Pennsylvania Constitutional Convention, 24 October 1837, part 1

James Dunlop took up the debate. He noticed a difficulty in the idea of legal conscientious objection. If you grant that the government should be empowered to order its citizens to do some thing or another or to suffer certain exactions, regardless of their own preferences, and then someone asks you to make an exception for certain citizens on the grounds of their conscientious objection — how do you distinguish “conscientious” objection from just the ordinary objection of people who would rather choose for themselves what activities to engage in or what causes to support?

If you say “everyone must do this, unless they’re conscientiously opposed” you might as well be saying “everyone must do this, unless they don’t want to” which means you might as well just not say anything at all. The alternative is to come up with some sort of test as to who is being “conscientious” and who is just being contrary, which puts your legislator or bureaucrat into the disreputable position of an inquisitor into the fathomless mysteries of human faith.

Dunlop nonetheless “hoped that the Friends and Mennonists would be exempted on account of their conscientious scruples from personal service”:

All who were scrupulous on this score, might, without inconvenience, be exempted upon the payment of an equivalent. We could spare them all; for we had an abundance of men and vast facilities for communication. We could now transport troops and munitions of war from the interior to the seaboard at the rate of thirty miles an hour. There were hundreds of thousands of men who would be ready and eager to rush into the field for the defense of the country. We need not look to the Friends and the Mennonists in the time of real danger; and we could easily frame our laws so as to save the consciences of all our fellow citizens who felt any scruples in regard to bearing arms.

He had voted for striking out the latter clause of the amendment reported, exempting the conscientiously scrupulous from personal service, upon the payment of an equivalent; but, if it were to go over again, he did not know that he should vote in the same way. But he was willing to exempt these persons upon the payment of an equivalent. The Mennonists had never refused to pay an equivalent, and all they wished was to be exempted from actual and personal attendance at the militia musters; and they were perfectly content with the provision of the Constitution as it now stood. But if this provision should be stricken out then they would be left to the mercy of the Legislature, who might withdraw from them the protection which they now enjoyed. The Friends stood in a different position in regard to this matter. Though willing to discharge all their civil duties strictly, fully, and promptly, they revolted from military service. They were good, liberal, and public-spirited citizens and would discharge any duty imposed upon them which was not against their consciences; and it was against their consciences’ either personally to repel force by force or to aid others in the strife of arms by paying an equivalent for personal service.

Now, he would ask, was it right and proper for us, who represented a large body of Mennonists, to give our consent to the possible withdrawal from them of the protection from personal duty which they now enjoyed by the payment of an equivalent? They would complain of such treatment and with great reason. The Mennonists, in his part of the State, were numerous, and they were sober, quiet, and industrious citizens. They had nothing to do with public affairs, and it was very difficult to prevail upon them even to exercise the right of suffrage, except at those times when they believe the bulwarks of the Constitution to be assailed, when they will come to its defense. This sect originated in Triesland in the year . Their great founder was Mennon, who was a man of piety and learning — of so great learning, that among his sect, he was considered as an oracle. His influence was very great in suppressing the ferocious and furious quarrels excited by the Anabaptists, and ultimately his principles spread very far through the country. At length, some portion of them, in consequence of religious persecution, came to this country, where they have always been esteemed useful, respectable, and quiet citizens. They maintained the character of their founder, were quiet and industrious, and indifferent to every thing except the cultivation and display of the unobtrusive virtues of Christianity. Would it be right to expose these men to the caprices of legislation, through which in a moment of alarm and excitement they might be deprived of the freedom of conscience which they now enjoyed, whereas they now have a bulwark in the Constitution which exempts them upon the payment of an equivalent from bearing arms against their consciences?

Why should any particular sect be exempted from the discharge of public duties? When men were by the operation of government protected in their persons and property, it was going beyond the limits of moderation for them to ask that they should be relieved from their proper share of the burden of public defense, either by personal service or by the payment of an equivalent. It was said to be productive of great hardships and oppression to the Society of Friends. But it was because they preferred to endure these hardships — to have their houses invaded — their property seized and sold — and their persons imprisoned, to the payment of the tax imposed by law as an equivalent for the service from which they were offered conditional exemption.

If we should say that every man who conscientiously scruples to bear arms shall be exempted, and without the payment of any equivalent, where shall we stop? We shall, by such a provision, hold out a boon to the traitor and the convict, and afford them an opportunity upon a false pretext to evade the performance of their duties as citizens. How many would say in reply to the summons of their country, I have married a wife, or I am building a house and cannot come. It must be left to their own conscience to determine whether they are sincere or not. You cannot through any earthly tribunal, ascertain whether any man has a conscientious scruple or not. Be he ever so profligate in his life, all he will have to do will be to say that he has a scruple of conscience. Suppose you tell him that his life contradicts his declaration, he can still say that his mind has been changed since he entered the door of the house where he is, and claim the benefit of the exemption. No period of time can be assigned within which the scruple shall be possessed, or a man’s mind changed upon the subject. If no human tribunal can judge of his conscience you must take his word, you cannot even swear him, for he may have scruples against taking the oath. You might, in fact, as well tell your officer not to enrol any man who will allege any scruples of conscience, as to have a general provision for exemption. No men would be enrolled but those of a strict sense of honor and duty, and your troops would soon dwindle down to a remnant, like those of Gideon, though they would not be so effective.

If we do not insist upon the payment of an equivalent, every fellow that chooses, may relieve himself of the duty by saying that he has scruples of conscience. We might just as well say at once, that every man who chooses may fight for his country and that if he does not choose he may let it alone. He would be very glad to accord all indulgence to the scruples of the Friends. As a class of citizens, they deserved the highest praise for their industry, economy, moderation, and public spirit. They were at the head of all our works of benevolence, and to them we owed, in a great measure, the amelioration of our institutions and laws. He had warm friendships among them, and for all whom he had known he entertained the highest respect. But they must permit him to say that it is impossible to penetrate men’s consciences and to draw a line of distinction between those who have sincere scruples and those who only affect to have them. Would it not be to grant an exclusive privilege to extend the exemption specially and exclusively to them? They were [aware] of this, and did not wish to have their name as a sect specially mentioned. They wished to be relieved and at the same time to have their denomination and their scruples left out of the question. We cannot, without granting an exclusive privilege, designate any particular society; and, if we make the exemption general, then we open the door for the escape of every coward and scoundrel who may wish to hold himself back from his country’s service in the time of peril.

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