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duty which we owe to our Creator and the Manner of dis-
the claims of Civil Society.23 Several points should be noticed about this passage. First, Madison accepted the definition of religion from the 1776 Declaration of Rights and, consequently, limited the discussion of religious liberty to a discussion of the claims against civil society which could be made by those who believe in the existence of a Creator. We noted earlier the dispute between Mason and Madison in 1776 over the extent to which civil society could legitimately regulate religiously motivated overt activity. The Memorial tried to split the difference between the two 1776 points of view. It began, as did Mason, with the statement of the primacy of opinion, but it went further. Madison argued that the natural right to hold opinions about the Creator implies a natural right to act on, or to exercise, those opinions. Madison did not go as far as he did in 1776, however, when he said that all action should be permitted unless it "manifestly endangered" the political community. In the Memorial, he seemed to limit the claims a believer could make against civil society to the performance of one particular kind of duty—the duty of paying homage to the Creator, that is, the duty of worship.
This view of the relationship between civil and religious obligation may seem straightforward at first glance, but it carried with it a number of difficult problems of interpretation. If worship is to be given some kind of special protection against legislative interference, it is necessary at some point to define the idea of "worship" and to state clearly the kind of protection it merits. Madison defined the idea in the quoted passage as the payment of homage to the Creator in a manner the believer thinks the Creator would find acceptable. In one respect, the subjective element of the definition is essential: Who but the believer himself is qualified to state the kind of worship demanded by the God
Ibid., pp. 184-85. (Emphasis added.)
in whom he believes? In another way, however, this element was precisely what created the difficulties: no political community can recognize a natural right to worship as one pleases, if worship is defined as whatever the believer thinks may be essential to pay homage to God. It is clear, for example, that sacrificial murder cannot be tolerated in the name of worship.
Madison at no point indicated a way to resolve this problem. He apparently no longer thought that all forms of religious activity should be given special protection, but he indicated no satisfactory way of distinguishing worship from other forms of activity. In part, this imprecision may have stemmed from the fact that the Memorial was designed as a rhetorical argument against assessment, not one in favor of religious freedom. Unfortunately, because of a scarcity of sources, the speech against assessment and the Memorial are the best indications of Madison's thoughts on free exercise during this period. His views on establishment and on freedom of religious opinion are clear and well documented, but we are left in deep confusion on the meaning of the protection for religious activity.
Madison and Jefferson Compared
Jefferson's conception of religious freedom seems to have been more fully worked out than Madison's on this point and is more fully documented in readily accessible source material. Jefferson's Bill for Establishing Religious Freedom, for example, was much more explicit than the Memorial and Remonstrance in describing the kinds of religiously motivated behavior not protected by the idea of religious liberty. (In the quotation from the bill appearing below, the material in parentheses was in the bill as it was written by Jefferson in 1779 but was omitted from the version finally passed by the Assembly in 1785.)
Well aware (that the opinions of men depend not on their own
We, the General Assembly, do enact, That no man shall be
place, or ministry whatsoever, nor shall be enforced, re-
capacities.24 This bill written by Jefferson and accepted by the Virginia General Assembly gave no protection to people who acted from religious motives if their actions, in the judgment of government officials, worked against peace and good order. Unlike Madison's Memorial and Remonstrance, the bill gave no explicit protection to worship except insofar as it was the expression of religious opinion. Under this formula, all sacramental activities were open to official scrutiny to see if they were consistent with peace and good order, and—again unlike the Memorial—the bill gave no weight to a religious interpretation of an action against an official interpretation of what the public order might require. Thus, Jefferson's formulation eliminated the ambiguity which resulted from Madison's attempt to protect worship while maintaining silence about other actions done in the name of religion.
This is about all we can learn from the 1785 bill itself. The bill differed from the Memorial and Remonstrance in important ways, but whether the differences between the views of their authors were seen by them as being serious ones is difficult to determine. Madison, after all, was the floor captain of Jefferson's bill in the Assembly. (Jefferson was in Paris.) Madison supported the bill's principles and was delighted by its success, but he probably would have wanted more had he had his first choice. The Memorial and Remonstrance represented a considerable step back from the "manifest danger” position of Madison in 1776. Nevertheless, the desire in 1784 to protect worship, as worship was defined by the believer, suggested that some of the premises underlying his thought might have differed from premises accepted by Mason, Jefferson, and most of the other supporters of religious freedom in Virginia at that time.
Whether Madison supported Jefferson's views fully or only partially, it is quite clear that the position adopted by the Virginia General Assembly in 1785 was Jefferson's. As a result, if we want to understand the meaning and purpose of the 1785 Virginia Bill on the critical question of the protection of religiously motivated behavior, we must turn primarily to the writings of Jefferson, not Madison. And if we
24T. Jefferson, The Complete Jefferson, Saul Padover, ed. (New York: Duell, Sloan & Pierce, 1943). pp. 946-47; Stokes, Church and State, vol. 1, pp. 392-94. (Emphasis added.)
want to understand Jefferson's thought, the best way to do so is to compare and contrast it with the thought of the writer who most directly influenced Jefferson's views on religious freedom, John Locke.
Jefferson and Locke
Much has been written about Locke's influence on Jefferson. The Declaration of Independence, for example, is well known to be based on the principles of Locke's Second Treatise. An article by S. Gerald Sandler25 has proved beyond doubt that there was a similar connection between the Bill for Establishing Religious Freedom and Locke's Letter Concerning Toleration. Sandler arranged parallel passages from Locke's Letter, Jefferson's “Notes on Locke" (notes on the Letter compiled about 1775), and the Bill for Establishing Religious Freedom. These parallel passages, Sandler argued, show that Jefferson took material directly from Locke, transforming it into the ideas presented in the bill. Sandler found parallel passages in Locke and Jefferson's “Notes" dealing with at least these four of the principal lines of thought developed in the bill:
(1) True belief is inspired by reason, not force.
(2) Civil magistrates are not competent to judge matters of religious truth.
(3) The domains of church and state are separate, and, therefore, a citizen's (religious) opinions should have no effect on his civil capacities.
(4) Civil governments may punish sedition and other similar activities which represent the movement from opinion to overt activity against peace and good order.
Sandler's major point is incontrovertible: there were a number of key similarities between Locke's and Jefferson's thought. But there were important differences between them as well, and these are important to our understanding of what it was that the people of Virginia accepted. In order to explain both the similarities and the differences, therefore, as well as to provide a theoretical introduction for the presentation of Jefferson's thought, let us now look briefly at the Letter Concerning Toleration.
Locke on Toleration
Locke's Letter began by distinguishing between the proper business of civil government and religion.26 The commonwealth, according to
255. Gerald Sandler, "Lockean Ideas in Jefferson's Bill for Establishing Religious Free. dom," Journal of the History of Ideas, vol. 21 (1960), pp. 110-116. 26John Locke, A Letter Concerning Toleration, 2d ed. (New York and Indianapolis: Bobbs Merrill-Liberal Arts Press, 1955), pp. 17-23.
Locke, is a society of men who gather together to further their civil interests. These interests include "life, liberty, health and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like."27 The duty of the civil magistrate is to secure these things for the people whom he serves; his jurisdiction cannot legitimately be extended to include the salvation of souls, because the purpose of politics is wholly concerned with the bodily needs or "civil interests"—just described. A church, by way of contrast, is a free society whose major purpose involves the worship of God and the salvation of souls. Like the commonwealth, the church is a form of society, and as such it requires laws. But just as the commonwealth has no business making laws for the church, or legislating on the subject of salvation, neither should ecclesiastical discipline extend outside its own proper sphere. Thus, church law should not be concerned with civil and worldly goods, even if the church thinks there is a direct connection between worldly goods and eternal salvation. Similarly, the church should not use physical power to enforce its views on salvation; the use of physical power should be limited to the civil magistrate.28 This "separation of church and state," based on a radical narrowing of the functions of both religion and politics, makes coexistence of church and state possible, but it is important to understand that this coexistence occurs largely on the state's terms: it is based on the view that the church should never interfere with the business of politics by compelling church members to accept the church's understanding of what is right and wrong with respect to the things of this world.
In return for telling the church to stay away from the business of the magistrate, Locke then told the magistrate not to interfere with what is left of the church's role. Since the function of politics leaves the magistrate with no legitimate reason for concerning himself with the salvation of souls, the magistrate therefore should not interfere with rites of worship-at least, not in the normal course of things. Locke avoided the difficulties Madison later faced with the idea of worship, however, by permitting the magistrate to prohibit from worship services whatever is normally prohibited to everybody. Thus, for example, ritual human sacrifice may be prohibited because all murder of humans is prohibited. On the other hand, the ritual sacrifice of calves must be permitted, as long as the animal slaughter corresponds to general health regulations concerning slaughter. The critical points here about the regulation of religiously motivated behavior are two:
arIbid., p. 17.