« PreviousContinue »
The author of the clause was George Mason, one of the more experienced of the politicians who helped guide the declaration through the convention and one of the most forceful spokesmen for religious liberty in Virginia at that time. As originally proposed by Mason, the clause declared,
That religion, or the duty which we owe to our Creator, and
tian forbearance, love and charity toward each other.6 Two points about Mason's proposal should be noted. First, the phrase, "the duty which we owe to our Creator, and the manner of discharging it" defined religion as the belief in a Creator and all of the duties arising from that belief. The definition was an important one, because it was the one consistently used in all of the Virginia legislation of this period. It excluded atheists, but it included deists. The second point is that, even though the definition considered all actions flowing from the duties owed to a Creator to be religious actions, the declaration did not say that all such actions could be performed freely. No person was permitted to do anything, whether religiously motivated or not, which might "disturb the peace, the happiness, or safety of society."
Mason's proposal went further than anything ever before adopted in Virginia, but it did not go far enough to satisfy James Madison—then a twenty-six-year-oid political scientist not long out of his studies in religion at Princeton. Madison particularly objected to Mason's use of the word "toleration" to describe civil society's acceptance of religious freedom, because the idea of toleration implied something which existed as a gift from the government, and not as a matter of right. He offered a substitute clause which provided,
That religion, or the duty we owe our Creator, and the man-
ties, unless under color of religion the preservation of equal G. Hunt, “Madison and Religious Liberty," American Historical Association Annual Report (1901), pp. 163, 166.
liberty, and the existence of the State be manifestly endan
gered.? Thus, Madison not only would have shifted away from the language of toleration to the language of rights, he also would have prohibited religious assessments and privileges, and, more important, he would have extended the protection of religious activity to include even those actions which disturb the "peace, happiness or safety" of society unless "the preservation of equal liberty and the existence of the State be manifestly endangered." This early version of the clear and present danger test went much further than Mason's proposal. The other delegates to the Virginia Convention would not accept it, however, and it was defeated, never to reappear in any proposal made in Virginia or elsewhere until the twentieth century.
The version finally adopted by the 1776 Convention contained Madison's "free exercise" language in place of Mason's phrase about toleration, and retained Mason's admonition to Christian forbearance, love, and charity. Neither Mason's nor Madison's version of the proper limit to place on legislative regulation of religious activity made its way into the final version: perhaps the legislature could not decide between the two texts. In its final form, then, the religious liberty guarantee of 1776 read as follows:
That religion, or the duty we owe to our Creator, and the
Between 1776 and 1784
The issue of religious freedom came up a number of times in the Virginia legislature in the eight years between the year the Declaration of Rights was adopted, 1776, and the year the fight leading to the Bill for Establishing Religious Freedom began, 1784. In December 1776, the Legislature's Committee on Religion, chaired by Jefferson, reported two bills designed to repeal all of the penalties then placed on dissenters for expressing their religious opinions. Both bills were passed. Also in 1776, the official tithes collected to meet the salary payments of Anglican clergy were suspended for one year. While Jefferson could
'Ibid., pp. 166-67. (Emphasis added.] 'Ibid., p. 167.
not find enough support for a complete abolition of the tithe in'1776, the Revolutionary War made it easy to continue the one-year suspensions of support for the Church of England until the tithe could be abolished in 1779. Dissenting (that is, non-Anglican) ministers were given the right to perform marriages in 1780, as long as they obtained a license, and in 1784 the license requirement was eliminated.'
There seems to have been a temporary shift in direction by the end of 1784, as the supporters of establishment gained a majority in the Assembly. This was the result both of the war's end and of the sorry state of Episcopalianism since the end of the tithes. 10 The Act Incorporating the Episcopal Church was passed in December 1784. Far more important, however, was the General Assessment Bill of 1784, or the "Bill for Establishing Support for Teachers of the Christian Religion." This bill, designed to serve as a replacement for the tithe, would have (1) named Christianity as the Established Religion of the Commonwealth; (2) declared the Articles of Faith essential to Christianity; (3) defined the forms of congregation that constituted a Christian church; and (4) as sessed each person a certain amount to be used to support the religious teacher and place of worship of his choice. If he should fail to name a choice, the amount was to be paid into a public fund to aid seminaries. 11
General Assessment Bill of 1784
This General Assessment Bill passed its second reading in the Assembly by a vote of 44-42, on December 23, the day after the passage of the act incorporating the Episcopal church. Somehow, though, Madison was able to win a vote on the next day to postpone the third reading until the next session of the legislature, to be held at the end of 1785.12
By the time the legislature reconvened, the narrow majority in favor of assessment had been changed to a majority against. Several factors helped bring about this change. First, Patrick Henry was elected governor in November 1784, with Jeffersonian-Madisonian support. That was one month before the first votes on incorporation and as
'This material is summarized by Stokes, Church and State, vol. 1, p. 380 ff. 1°Eckenrode, in Separation, pp. 73-75, noted that the Episcopal (Anglican) clergy had done so little to develop sources of voluntary contributions up to this time that, with the end of legally enforced tithes, a number of these clergy went without pay for years, while many others had to leave their churches. This and other factors led some supporters of the Revolution—including George Washington, John Marshall, and Patrick Henry-to express concern about the future ability of the churches to perform the function of inculcating morality in the citizens of the Commonwealth. "An early version of this bill was published in Eckenrode, ibid., pp. 58-61. 121bid., pp. 102-103.
sessment, and it removed the leading supporter of assessment from the Assembly. Henry was easily the most powerful figure in the Assembly, and his departure, combined with the absence of anyone with
ual legislative skills to take his place, left Madison in a position to take advantage of a vacuum. The effect of Henry's absence was already felt in the erosion of the support for assessment in the month between November and December, when Madison won postponement of the third reading. It became critically important by the following year.
The second major factor in the defeat of assessment was the tactical error made by its supporters of bringing up the question of incorporating the Episcopal church before the assessment issue was settled. 13 The passage of the Incorporation Bill helped persuade a number of Presbyterians to join the strong Baptist opposition to assessment. During the recess, Presbyterians began to see the justice of the argument made by Madison and his supporters that the principle used to support a general assessment for all Christian sects could just as easily be used to support a special assessment for the benefit of one sect only. The Incorporation Bill, giving legally privileged status to the newly formed Episcopal church, led many Presbyterians to wonder whether the Episcopal church wanted to replace its forebear, the Anglican church, as the established church of the Commonwealth. 14 As a result, they formally came out in opposition to the bill during the summer of 1785, thus reversing their previous position.15
The final factor connected with the defeat of assessment was Madison's famous Memorial and Remonstrance of July 1785. The Memorial and Remonstrance was used as the basis for hundreds of petitions bearing thousands of names that were sent to the legislature in the fall. The petition campaign, organized by Madison's allies in the legislature, shook the belief of many statesmen that the general public favored assessment. Indeed, it gave the impression-valid or not-of overwhelming public opposition to the bill.16
When the Assembly reconvened in October 1785, the General Assessment Bill was permitted to die quietly in committee."? In its place, the Assembly passed the Bill for Establishing Religious Freedom on December 17.18 (Jefferson had written this bill in 1779 while he was
"Ibid., pp. 80-81. "SIbid., p. 106. 16For Madison's opinion of the tactical importance of the Memorial and Remonstrance, see ). Madison, "Detached Memoranda," William and Mary Quarterly, 3d Series, vol. 3 (1946), pp. 534, 555-56. "Eckenrode, Separation, p. 113.
chairman of the Religion Committee, but it had remained dormant until Madison revived it while serving on that same committee in 1785.) The 1784 Act Incorporating the Episcopal Church was repealed the following year. 19
Madison on Religious Freedom
The opinions expressed by Madison in the Memorial and Remonstrance and by Jefferson in the Bill for Establishing Religious Freedom were, for our purposes, the most important of the views expressed during the ten years of Virginia debate. These two Virginia leaders were stronger advocates of the right of religious liberty than were any other major political leaders in the United States of the 1780s. As a result, what was said earlier about the way to use the example of Virginia in general applies with even more force to the historical relevance of Madison and Jefferson; whatever the general opinion on free exercise might have been in 1789 in the First Congress, the consensus surely did not go further than Jefferson or Madison would have gone in tolerating religious freedom.
Madison's views on religion during these years were stated most clearly in the Memorial and Remonstrance itself, and in the notes of a speech he made in the Assembly against the General Assessment Bill. In one of the important sections of this speech, Madison criticized the attempt of the General Assessment Bill to establish Christianity.20 The principal objection was that the attempt to establish Christianity necessarily required someone to distinguish between what is Christian and what is not. The great danger in this was that, since definitions in this area are necessarily imprecise, 21 we may end up by branding those we call non-Christians as heretics. Once this happens the so-called heretics would have good reason to fear for their religious liberty.
Madison made a similar point in the Memorial and Remonstrance.22 That work began with some general observations about religious liberty:
We remonstrate against the said Bill, ... because we hold it
pp. 116-29. 20 James Madison, Writings, Hunt, ed., "Notes of Speech Against Assessments For Support of Religion," vol. 2 (November 1784), p. 89. In the long letter he wrote to Jefferson in 1787 describing the work of the Constitutional Convention, Madison commented that while "no distinction seems to be more obvious than that between spiritual and temporal matters," these lines become blurred upon closer inspection. October 24, 1787, ibid., vol. 5, p. 26. 22 Ibid., vol. 2, p. 187.