more, Mason, in a letter of October 2, 1778, enclosing a copy of the Bill, states that it was "just as it was drawn and presented by me.'

11205

The only evidence opposing Mason's claim to the authorship of the Bill is a statement in Edmund Randolph's manuscript history, in which he says that "The fifteenth, recommending an adherence and frequent recurrence to fundamental principles, and the sixteenth, unfettering the exercise of religion, were proposed by Mr. Henry. The latter, coming from a gentleman who was supposed to be a dissenter, caused an appeal to him, whether it was designed as a prelude to an attack on the established church, and he disclaimed such an object."

The probability is that Mason wrote the draft of the sixteenth article, and with his liberal views of religion it is hardly likely that he needed any urging; at the same time, if Randolph's statement is worthy of credence, it is evident that Henry gave such a special advocacy to the fifteenth and sixteenth articles as to be considered their originator. And indeed Henry had a peculiar interest in urging the claims of the dissenters. His sympathies were with them, and, besides, his chief political influence lay in the midland region, where dissent and democratic feeling were strong.'

,"207

The article on religion was not adopted without some amendment. As originally written it contained the phrase, "that all men should enjoy the fullest toleration in the exercise of religion." Madison offered an amendment which declared "That religion, or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience, and, therefore, that no man or class of men ought, on account of religion, to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities unless, under color of religion, the preservation of equal liberty and the existence of the state be manifestly endangered."208

The article as adopted omitted the word "toleration," to which Madison had specifically objected, and affirmed instead "that all men are equally entitled to the free exercise of religion, according to the dictates of conscience." It was certainly a broad declaration of religious liberty, even if the exact extent of its application was not recognized. William Wirt Henry, in writing of it, made the claim that "It is the high honor of Virginia that she was thus the first state in the history of the world to pronounce the decree of absolute divorce between Church and State, and to lay as the chief corner-stone of her fabric of government this precious stone of religious liberty, which had been rejected by the builders." To this statement, Charles J. Stillé, of Philadelphia, took serious exception. He denied that the sixteenth article of the Bill of Rights was a declaration of religious liberty.21 But if it is not a declaration of religious liberty, it is a grant of toleration. This, however, the article could hardly be, since the word "toleration" was struck out in order to make the article convey the idea of religious liberty.

205 K. M. Rowland's Life of Gcorgo Mason, I, 237.

200 Conway's Randolph, 30. Henry's Henry, I, 430.

207 W. C. Rives' Life and Times of James Madison, I, 142. 208 W. C. Rives' Life and Times of James Madison, I, 142. 209 Papers of the American Historical Association, II, 26. 210 Ibid., III, 205. Henry's reply, same volume, p. 213.

91209

Madison himself left his commentary upon this point in a manuscript copy of the Bill of Rights.

"On the printed paper, here literally copied, is a manuscript variation of this last article making it read"-(Here the amendment proposed by him is incorporated). "This variation," he adds, "is in the handwriting of J. M., and is recollected to have been brought forward by him with a view, more particularly, to substitute for the idea expressed by the term 'toleration,' an ‘absolute and equal right' in all the exercise of religion according to the dictates of conscience. The proposal was moulded into the last article in the Declaration as finally established, from which the term 'toleration' is excluded."211

Another objection is urged to W. W. Henry's thesis to the effect that the Bill of Rights is not a law but a mere declaration of what the law ought to be when the statute should be subsequently enacted. This statement is followed by an account of the religious struggle in Virginia during the Revolution, including the bill for religious freedom and the act of 1799.212

As a matter of fact the Bill of Rights has always been considered a part of the crganic law of Virginia. It had, too, an immediate effect as law. Prosecution for religious causes ceased. Disabilities on account of religion were removed. Subscription to the declaration against transubstantiation was no longer required of officers of the government. Anglicans, Roman Catholics, Evangelicals, Jews, and unbelievers were placed on the same civil footing. It may be said, then, that Virginia was ahead of the world at the time when the Bill of Rights was adopted, making the first legal statement of the principle of religious liberty.

But W. W. Henry is incorrect in declaring that the sixteenth article effected an "absolute divorce of Church and State." Its action upon the relations of church and state was not clearly understood. 'Dissenters appealed to it as breaking this connection, but Anglicans, on the other hand, interpreted it as sanctioning a broad and liberal union. The Bill of Rights and the act of 1776 suspending for a year the payment of Anglican ministers' salaries did away forever with the taxation of 'dissenters for the benefit of the establishment, but the question had not been settled as to the compatibility of a tax for the general support of religion with the principle of religious freedom.

This doubt as to the interpretation of the sixteenth article 'afforded the conservatives an opportunity to rally and to attempt to secure the union of church and state on a broader basis. Another cause contributed to the religious struggle in Virginia after the adoption of the Bill of Rights. Grigsby has pointed out that the limitations of the constitution were not invariably regarded by the Assembly. The house of delegates looked upon itself as occupying much the same position as the house of commons, and consequently as wielding wide and somewhat indefinite powers. The house of delegates claimed a competency to legislate on the question of religion, although this power was felt to be hedged about in a rather undefined 'way by the Bill of Rights. Practical considerations, too, aided in preventing 'a

211 Rives, Madison, I, 145.

212 Papers of the American Historical Association, III, 205 et seq.

rigid and sweeping interpretation of the sixteenth article. The establishment had always existed as a part of the state; it still continued to be so regarded after the beginning of the Revolution and the adoption of the constitution, even if the existence of an established 'church in a democratic republic was something of an anomaly. Some years passed before this fact was admitted by the conservative 'element in the State, but its admission could not be forever postponed.

During the Revolution state and church continued to have a certain connection. Anglican clergymen were still regarded, in a sense, as officers of the state, and as such were alone capable of performing the marriage ceremony. Vestries, too, while bereft of their old power to levy tithes for the support of the establishment, managed 'the poor relief system and assessed taxes for it.

The act of 1776, "for exempting the different 'societies of Dissenters from contributing to the support and maintenance of the church as by law established" supplemented the sixteenth article of the Bill of Rights, which did not contain any specific reference, as Madison desired, to the question of clerical dues. It was passed in the recession of the wave of democratic feeling which had moved the Commonwealth in the earlier months of the year.

214

The first Assembly of 'the independent state met on October 7, 1776. Edmund Fendleton, former chairman of the committee of safety and president of the convention, was elected speaker of the house of delegates.13 The committee for religion included Carter Braxton, Richard Lee, Richard Bland, William Fleming, Mann Page, Robert Carter Nicholas, Thomas Jefferson, and other prominent men." On the same day the first dissenter petition came into the house. It was from the largely Presbyterian county of Prince Edward, and the subscribers pledged their allegiance to the new government.215 Then the plea was made for disestablishment. "The last article of the Bill of Rights we also esteem as the rising Sun of religious Liberty, to relieve us from a long night of ecclesiastic Bondage; and we do most earnestly request and expect that you would go on to complete what is so nobly begun; raise religious as well as civil Liberty to the zenith of Glory, and make Virginia an Asylum for free enquiry, knowledge, and the virtuous of every Denomination. Justice to ourselves and 'posterity, as well as a regard to the honour of the Common-Wealth, makes it our indespensable Duty, in particular to 'intreat, That without Delay, you would pull down all Church Establishments; abolish every Tax upon Conscience and private judgment and define accurately between civil and 'ecclesiastic authority; then leave our Lord Jesus Christ the Honour of being the Sole Law giver and Governor in his Church."

*

Jefferson, who was a member of nearly all of the important committees, had now begun to launch his great democratic programme, which included religious as well as political, legal, and educational measures. On October 14, 1776, he presented his famous bill "to enable tenants in taille to convey

213 Journal of H. of D., 1776, p. 3.

214 Journal of the H. of D., 1776, p. 7.

215 Journal, p.7. The paper is signed by 160 names, many of them Presbyterian-Johnstons, Porters, Cunninghams, Grahams, Caldwells, Morrisons, and many others. It came at a critical

moment.

their lands in fee simple,' ,"21 and on the same day a bill "for the naturalization of foreigners."

Other petitions from the evangelical churches emphasized the Prince Edward memorial. On October 16, a petition was presented asking for the ending of the establishment, that "this as well as every other yoke may be Broken and that the oppressed may go free that so every Religious Denomination being on a Level animosities may cease." On October 22, two petitions, written in 'the same form and signed by dissenters in Albemarle, Amherst, and Buckingham, advanced the theory that the Bill of Rights had put an end to the establishment and that any laws passed for its maintenance would not be a continuation of an existing institution, but a revival of a dead

one.

The establishment was not without its defenders. The Methodists, who seldom interfered as a religious organization in political affairs, asked, on October 28, for the retention of the state church. "We do all in our power to strengthen and support the said Church-And as we conceive that very bad consequences would arise from the abolishment of the establishmentWe therefore pray that as the Church of England ever' hath been, so it may still continue to be Established." The significant and enlightening words are added: "Signed in Behalf of the whole Body of the people commonly called Methodists in Virginia, consisting of near, if not altogether, three thousand members. Geo. Shadford."21

219

On November 8, the falling establishment spoke for itself in a moderate and well-written paper. The clergy argued that they were educated for a special profession and guarantees were given them of a livelihood and that these guarantees should be fulfilled. Besides, an establishment is conducive to the peace and happiness of a state, as the conduct of men is to some extent dependent upon their opinions, and this being so, "it therefore cannot be improper for the legislative Body of a State to consider how such opinions as are most consonant to Reason and of the best Efficacy in 'human affairs, may be propogated and supported." Christianity can be best preserved in its purity by an established church, as it supports a learned ministry, and the hardships which an establishment might impose on individuals or bodies of men ought not to be considered as weighing against it. The Virginia church had produced good fruits in the century and a half of 'its existence and had treated dissenters with charity. This mildness had been acknowledged "by those very dissenters, who now aim at its Ruin, many of whom emigrated from other countries, to settle in this, from motives, we may reasonably suppose, of Interest and Happiness." The petition finally urged that the 'question of continuing the establishment be deferred until the general sentiment of the people had been consulted.

A large part of the people favored the establishment. A meeting of Accomac 'people instructed their delegates to oppose the attempt "to subvert altogether the present establishment of the Church of England." A

21 Journal, p. 12.

217 Journal, p. 15.

Signed by 127 names, apparently of people of several denominations. 218 Journal, p. 30. This extract and the succeeding quotations of religious petitions, in part or in full, are taken from a manuscript collection in the Virginia State Library, known as "Religious Petitions," and arranged in order by years.

21 Journal, p. 47. MS. "Religious Petitions," 1776.

petition of Charles City conservatives, not presented to the Assembly but printed in Purdie's 'Gazette, complained of the inroads of dissenters and their night meetings, which attracted large numbers of slaves, and asked "that the Church may be maintained in all its legal rights, and that the sectaries may be indulged with such a regulated toleration as to this honorable House shall seem proper."

11220

But these last appeals in behalf of the lost cause were overborne by the demands of the dissenters. Petitioners from Augusta, on November 9, protested against the burden of supporting an establishment while under obligation "to support Gcspel Ministers of their own profession." Tuscarora Congregation (Presbyterian), of Berkeley county, argued that laws incompatible with the Bill of Rights ought to be immediately repealed. Human rights, and religious liberty as one of them, should have every ground of security which law could assure them. The establishment was inconsistent with the rights of humanity, civil and religious, and it ought therefore to be "suspended or laid aside."

The German congregation in Culpeper asked exemption from parochial taxes on the ground that it supported its share of the expense of the war, while maintaining its own ministers, and yet declared at the same time that it was "not breaking from the established church, as do the Common Discenders."

221'

The most noteworthy petition presented at the session was that of the "Dissenters from the Ecclesiastical Establishment, in the Commonwealth of Virginia." It is, like other petitions, an appeal for the overthrow of the establishment. "Your Petitioners-having long groaned under the Burden of an ecclesiastical Establishment, beg leave to move your Honorable House, that this as well as every other yoke may be broken, and that 'the oppressed may go free."

These petitions were the outside stimuli of a great struggle. It is almost certain that Jefferson would have attacked the establishment, even if no dissenting petitions had come in, but as they came, they were of 'use and strengthened the democratic wing of the Assembly.

The position of the Presbyterian church as the chief dissenting faith was, of course, of great importance. Hanover Presbytery, in its petition to the house, took the ground that the Declaration of Rights had secured religious freedom, and: "Therefore we rely upon this Declaration as well as the justice of our honorable Legislature, to secure us the free exercise of religion according to the dictates of our consciences." Dissenters should no longer be taxed for the benefit of the establishment. Religious liberty should accompany civil liberty. The establishment had injured Virginia by preventing immigration into it of thousands of dissenters. Christianity needed no aid from the state, as it lived by its spiritual power, not by external causes. Presbyterians requested no establishment for themselves; they asked that all churches might be left to the free exercise of their

220 American Archives, 5th series, III, 1776, Colo. 1092-1093.

221 MS. "Religious Petitions," 1776. This paper is signed by about 10,000 names. The immense manuscript is made up of segments pasted together and in many cases lists of names are written out by the same hand. No prominent Virginians are included. Most of the names are obscure, although a good many fairly well identified are included. Probably dissenters of all denominations are represented, and possibly persons of no persuasions.