218

PRINCIPLES OF THE REVISION.

[CHAP. VL five originally chosen members were together), had settled some important principles for the revised code. The law of descents coming within Mr. Jefferson's share of the work, he proposed-in addition to the abolition of entails already accomplished to also abolish primogeniture, and make real estate, like personal property, descendible equally to the next of kin. This would tear away the last prop of the ancient landed aristocracy of Virginia; and Mr. Pendleton made a strong stand against it. Finding, however, the majority of the Revisers against him, he proposed a compromise-namely, to adopt the Hebrew principle, and give a double portion to the older son. Jefferson demolished the proposition thus:

"I observed, that if the eldest son could eat twice as much, or do double work, it might be a natural evidence of his right to a double portion; but being on a par in his powers and wants, with his brothers and sisters, he should be on a par also in the partition of the patrimony; and such was the decision of the other members."1

The Revisers next agreed that the punishment of death should be abolished except for treason and murder; and that other felonies should be punished by imprisonment, hard labor on the public works, and in some instances by retaliation in kind. Mr. Jefferson says in his Memoir: "how this last revolting principle came to obtain our approbation I do not remember." Here is another modest suppression of those details which would seem to claim for him superiority over his colleagues, for it distinctly appears that he was opposed to the "revolting principle," but was overruled. He wrote Mr. Wythe, his fellow-reviser, November 1, 1778:

"I have strictly observed the scale of punishments settled by the Committee without being entirely satisfied with it. The Lex talionis, although a restitution of the Common law, to the simplicity of which we have generally found it so advantageous to return, will be revolting to the humanized feelings of modern times. An eye for an eye, and a hand for a hand, will exhibit spectacles in execution whose moral effect would be questionable; and even the membrum pro membro of Bracton, or the punishment of the offending member, although long authorized by our law, for the same offence in a slave, has, you know, been not long since repealed, in conformity with public sentiment. This needs reconsideration." "

Garland, in his Life of Randolph, represents George Mason as lamenting the overthrow of the ancient laws of descent in Virginia, and exclaiming that Jefferson, Wythe and Pendleton "never had a son.' He probably was not aware that George Mason was present when it was settled to overthrow these laws, and voted for it, as Jefferson above asserts. Jefferson was himself an older son. He did have a son born within four months of the time of this meeting. He did have three children born afterwards, and could not very well have known, in advance, that none of them would be sons!

2 This letter is given in Note E to Jefferson's Memoir, in his Works.

CHAP. VI.]

BILL FOR RELIGIOUS FREEDOM.

219

That we should attempt anything like a description of Mr. Jefferson's portion of the Revision will not be expected; but a glance at the character and fate of a few of his most prominent bills, introducing material changes, and changes of principle, into the existing framework of legislation, will perhaps be expected, for they illustrate his character as a lawgiver, and, to some extent, as a statesman.

The bill for Establishing Religious Freedom was a splendid example of the manner in which—at least on great subjects— language, in all respects as appropriate and infinitely more dignified, may be made to take the place of the usual hard, dry, tautological phraseology of legislation. This bill, as given in the Notes on Virginia, and as commonly published, is not the original, but the bill amended, as it passed the Virginia General Assembly. The former not being very accessible to the mass of readers, and being a good specimen of Mr. Jefferson's law diction, we give it entire. The parts which the Virginia Legislature struck out are placed in italics; two inserted or added words are placed in brackets; and three slight alterations are indicated by placing the substituted words in the margin:

A BILL FOR ESTABLISHING RELIGIOUS Freedom.

Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds; that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend its influence on reason alone; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time: that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive

220

temp.al

Be it therefore enacted by the General Assembly,

the power

BILL FOR RELIGIOUS FREEDOM.

[CHAP. VI.

to righteousness, and is withdrawing from the ministry those tempo rary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind; that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to [the] offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriv ing him injuriously of those privileges and advantages to which, in common with his fellow-citizens, he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that the opinions of men are not the object of civil government, nor under its jurisdiction; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on [the] supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.

We, the General Assembly, do enact, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

And though we know well that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right."

CHAP. VI.]

THE STRUGGLE ON IT.

221

The horror with which this proposed bill was regarded by the zealous friends of an Establishment, in Virginia, must have been somewhat mitigated by the next succeeding one in the Revision. This, entitled "A bill for saving the property of the Church heretofore by law established," provided that the glebes, churches, furniture, arrearages, etc., and all church property of every description of private donation, "should be saved in all time to come to the members of the English Church" resident in the parish-to be applied as they should see fit for the support of their ministry. The surviving vestry men in every parish were to have authority to carry into execution all legal contracts entered into before the 1st of January, 1777, even if a levy or tax, on all, should become necessary for that purpose. Where previous levies had exceeded the law, and surpluses above indebtednesses were on hand, at the same date, they were to be paid into the poor rates of the parish; but if the parish had no glebe, the surplus was to be applied to the purchase of one. This last liberal provision was doubtless based on the ground that until a glebe was purchased-anterior to 1776 a legal charge on the parish-no surplus could actually ensue.

The effect of such a law would have been to reserve to the Church all property legally in its possession; but the title and control would be transferred from the vestries to the members,' who would be bound to apply it to the support of a ministry, but would be left sole judges of the conditions of the application. This bill seems to have aimed to steer between a violation of vested rights, and using property for other purposes voluntarily devoted to religious objects by its owners—and the arming of a hierarchical body with perpetual power to use a fund contributed by all denominations for the exclusive support of a particular class of tenets.

Another bill exempted all clergymen from arrest while performing religious services, and provided severe punishments for disturbers of public worship.

The Revision, therefore, did not sanction that confiscation. of the glebes which afterwards took place. Whether Mr. Jefferson changed his mind, and kept up with the demands of popular feeling in that particular, we have no means of know

They might still, we take it, constitute their vestries their agents for the management of their property.

222

WASHINGTON'S AND HENRY'S VIEWS.

[CHAP. VI.

ing. We remember no utterance of his on that subject, after reporting the bills we have described.

We might as well close what we have to say on this topic here. The General Assembly continued to suspend Church levies until the fall session of 1779, and then abolished them. This was not, however, acquiesced in; and after some prelimi nary legislation strengthening the Anglican Church, which we will not stop to describe, a determined move was made in 1784, to" establish a provision for teachers of the Christian Religion" by what was termed a "general assessment." This was a compulsory tax on all for the support of the clergy, but it allowed each person to decide to what denomination his contribution should go. This was the best arrangement the Anglican Church could now hope for, and most of the Dissenters, it would seem (the Baptists being said to be the only exception, as a church), were ready to join the former on this ground, and unite in a strenuous effort in favor of the measure.'

The struggle was tremendous. Jefferson was now in a foreign land. The massive strength of George Mason, the matchless logic of Madison, the dauntless nerve of George Nicholas were on one side, with such followers as such men and such a cause could command. On the other, were most of the churches, the landed gentry, and some such towering names as those of George Washington, Patrick Henry, and Richard H. Lee.

Pending the question in the House of Delegates, General Washington wrote George Mason (Oct. 3, 1785):

་

Although no man's sentiments are more opposed to any kind of restraint upon religious principles than mine are, yet I confess that I am not among the number of those, who are so much alarmed at the thoughts of making people pay towards the support of that which they profess." "

"Mr. Henry," says his biographer, Wirt, "gave his warmest support" in the House of Delegates (November, 1784) to the approbatory resolutions on which the bill for a general assessment was founded; and that he did not vote for the bill itself when it came up for passage, was owing to his not being a member of the House, having been chosen Governor.'

1 So Jefferson, Tucker and other Virginia writers declare. See Sparks's Washington, vol. xii. p. 404, in Appendix See Wirt's Henry, pp. 260-263.