Separation of Church and State Law

Jerald Finney
Copyright © December 31, 2012
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Note. This is a modified version of Section IV, Chapter 9 of God Betrayed: Separation of Church and State/The Biblical Principles and the American Application. Audio Teachings on the History of the First Amendment has links to the audio teaching of Jerald Finney on the history of the First Amendment.

Chapter 9

To Virginia


I. Introduction: the dissenters, mainly Baptists, led the fight for religious liberty
II. Virginia colonial government controlled by religion (Episcopal church) and law (covering both Tables), Presbyterians First Amendment
III. Presbyterians settle in Virginia, some were licensed, kept their promises and oaths under the Act of Toleration
IV. Regular Baptists applied for license and took oaths; Separate Baptists stood for religious freedom, had success because of the power of God and the immorality of the established clergy; Separate Baptists grew in number and power; the ministry of Samuel Harris
V. Severe persecution of Baptists from 1768-1774
VI. Baptists petitioned Virginia House of Burgesses for relief, Presbyterians petitioned for favors; James Madison writes on the persecutions, establishment which leads to pride, ignorance, knavery, and corruption, freedom of conscience, etc.
VII. Intolerance and persecution were ended because of the Revolution; the Baptists push for religious freedom and the end of the establishment; Virginia became the second colony to recognize religious liberty in a new Constitution in 1776 (Patrick Henry proposed tolerance, but James Madison pushed religious liberty-which he learned from the Baptists-and explained the difference)
VIII. 1776-1786 the battle for soul liberty was on;1776 compromise bill sounded the death knell of Anglicanism; 1776-1779 assembly daily contests between the “contending factions” with a flood of undeviating and uncompromising Baptist petitions as well as watered down Presbyterian and Methodist petitions; Jefferson introduced his Bill for Religious Liberty; a ‘bill establishing provision for teachers of the Christian religion,’ sponsored by Patrick Henry, opposed by Madison who prepared his famous “Memorial and Remonstrance” (quoted below) in opposition; legislature passed a bill incorporating the Episcopal church in 1785; January 16, 1786, the Virginia Act for Religious Liberty, drafted by Thomas Jefferson, passed
IX. The Baptists continued the struggle to remove all vestiges of the establishment until the glebes were sold and all religious societies were placed on an equal footing

I. Introduction: the dissenters, mainly Baptists, led the fight for religious liberty

Although the final expression of religious freedom that would be incorporated into the Constitution came from Virginia, the final motivation came as a result of the convictions of the dissenters, mainly the Baptists, and the thrust for their growth and influence came from the Great Awakening.

“[T]he early Baptists of Virginia, … while they could not boast of great wealth, or culture, or refinement, they possessed some things of more real value, and which the Commonwealth greatly needed. In the first place they had religion—genuine religion; not a sham, nor an empty form, but the old time religion of the heart. Then they had a personal worth or character, that character which always follows from having genuine religion. And then, again, those early Baptists had an unquenchable love of liberty. The truth of the New Testament makes men free indeed, and it inspires them with a love of freedom, not for themselves only, but for all men. And it was because they possessed these traits that they resisted the temptations of the General Incorporation and General Assessment, and stood their ground amid the general desertion. They resolved to continue to fight” (Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Harrisonburg, VA.: Sprinkle Publications, 2007; First Published Lynchburg, VA.: J. P. Bell Company, 1900), Appendix A, pp. 207-208).

The conflict in Virginia originally involved the Anglicans and Presbyterians, neither of which originally believed in either religious freedom or separation of church and state. Religious freedom and separation are owed mainly to the Baptists who believed in both. What Jefferson and Madison wrote about and did for religious freedom[, although leavened with enlightenment principles,] resulted from their observance of the conflict among “Christians” and is not to be found in the pages of philosophers of the enlightenment (See, e.g., William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), pp. 89-90.).

“The Presbyterians [in Virginia] won religious liberty for themselves against the opposition of the Episcopalians. Next the Baptists won religious liberty for themselves against the opposition of the Episcopalians and the Presbyterians. By 1775 about three quarters of the people of Virginia were outside the Church of England, but many of the most influential Virginians were inside. When the war started, there were ninety-five Anglican parishes in Virginia. The war killed off at least a quarter of them. Nowhere in the colonies was Tory sentiment stronger than among the Anglican clergy of Virginia, and they found themselves at the gravest of odds with their flocks” (Ibid., p. 93).

II. Virginia colonial government controlled by religion (Episcopal church) and law (covering both Tables), Presbyterians First Amendment

The Episcopal church, the Church of England, in Virginia was established from the founding of Jamestown in 1607:

“It was known, also, as the ‘Established Church,’ because it was made, by legal enactment, the church of the State and was supported by taxation. Not only so, but it was designed to be the established church, to the exclusion of all others. Rigid laws, with severe penalties affixed, were passed, having for their object the exclusion of all Dissenters from the colony, and the compelling of conformity to the established, or State, religion. Even after the Revolution of 1688, which placed William and Mary upon the throne of England and secured the passage of the ‘Act of Toleration’ the following year, the ‘General Court of the Colony’ of Virginia construed that act to suit themselves, and withheld its benefits from Dissenters … until they were compelled to yield to the force of circumstances” (James, pp. 10-11).

The Church of England was stronger in Virginia than in any colony.

In Virginia, the established Anglican church was controlled by the state, unlike in New England where the established church controlled the state. From the beginning of the colony, the “company knew not how to control the members composing the colony but by religion and law” (Ibid., p. 17). The original “Lawes Divine, Moral and Martial” which were decreed in 1612, were severe. Speaking impiously of the Trinity or of God the Father, Son, or Holy Spirit, blaspheming God, incorrigibly cursing, a third failure to attend religious services, and a third “Sabbath-breaking,” were punishable by death. Other spiritual offenses were punished by whipping and other penalties (See Leo Pfeffer, Church, State, and Freedom (Boston: The Beacon Press, 1953), p. 69 for the text of this law.).

These laws were repealed upon appeal to England, and the laws enacted in support of the Anglican establishment were less severe. Still, the Anglican church was established (and this establishment continued until the revolution with one short interruption), nonattendance at church services was the subject of fines, the payment of tithes were mandatory, every parson was entitled to the glebe—a piece of land—parish churches were built by taxes, and ministers were required to “conform themselves in all things according to the canons of the Church of England.”

“Puritan clergy were banished for failing to conform to Anglican services; Quakers [and Baptists] were fined, imprisoned, and banished. Catholics were disqualified for public office, and any priest who ventured to enter the colony was subject to instant expulsion. Penalties were imposed on those who having scruples against infant baptism, neglected to present their children for that purpose” (Ibid.; see also, James, pp. 17-20 for a more comprehensive overview of the laws of Virginia which provided for religious persecution and the established church.).

A 1643 law forbade anyone to teach or preach religion, publicly or privately, who was not a minister of the Church of England, and instructed governor and council to expel all nonconformists from the colony (William L. Lumpkin, Baptist Foundations in the South (Eugene, Oregon: Wipf & Stock Publishers, 2006), p. 105). In 1643, three Congregationalist ministers from Boston were forced to leave the colony. Also in 1643, “Sir William Berkeley, Royal Governor of Virginia, strove, by whippings and brandings, to make the inhabitants of that colony conform to the Established church, and thus drove out the Baptists and Quakers, who found a refuge in … North Carolina.” Quakers first came to Virginia in “1659-60, and … the utmost degree of persecution was exercised towards them.” “During the period of the Commonwealth in England, there had been a kind of interregnum as to both Church and State in Virginia; but in 1661, the supremacy of the Church of England was again fully established.” Only ministers of the Church of England were permitted to preach, and only ministers of that church could “celebrate the rites of matrimony,” and only “according to the ceremony prescribed in the Book of Common Prayer” (James, pp. 17-20).

III. Presbyterians settle in Virginia, some were licensed, kept their promises and oaths under the Act of Toleration

Although some Presbyterians settled in Virginia from 1670 to 1680, the number & influence of Presbyterians in Virginia was small until the mid-1700s. In the mid-1700s an influential body of Presbyterians settled in Hanover County as a result of a 1738 agreement between the Presbyterian Synod of Philadelphia and Virginia governor William Gooch which allowed “emigrants to occupy the frontier portions of Virginia and enjoy the benefits of the Act of Toleration” (Ibid., pp. 11-12).

The first non-Anglican minister to receive a license under the Act of Toleration passed by the British Parliament in 1689, which instructed liberty of conscience for all but Papists, was Francis Makemie, a Presbyterian minister in Accomac County. By 1725, no more than five conventicles, “three small meetings of Quakers and two of Presbyterians,” were licensed, and these in poorer counties who were unable to pay the established minister enough to stay. In 1725, a similar license was granted to “certain parties (doubtless Presbyterians)” in Richmond County (Ibid., pp. 20-22).

Presbyterian families from Pennsylvania and Maryland began to move to remote parts of Virginia on the western frontier in 1738. The Presbyterian Synod of Pennsylvania wrote Governor Gooch of Virginia asking for religious freedom for those Presbyterians. Governor Gooch, knowing these people “to be firm, enterprising, hardy, brave, good citizens and soldiers,” and desiring “to form a complete line of defense against the savage inroads,” welcomed them. “At so great a distance from the older settlements, he anticipated no danger to the established church.” The conditions of settlement were that they “were not only to settle in the frontier counties as a buffer between the Churchmen and the Indians, but they had to swear allegiance to ‘His Magesty’s person and government,’” pay the taxes levied in support of the Established Church, and never by word or deed seek to injure the said church…. “Houses for public worship could not be occupied without permission from the civil authorities, and each application for a house of worship was heard on its own merits.” “[Those early Presbyterians] did not break their promise nor violate their oaths.”  Up to the Revolution, “they never demanded anything more than their rights under the Act of Toleration, and … not until the Revolution was accomplished, and Virginia had thrown off allegiance to Great Britain, did they (the Presbyterians) strike hands with the Baptists in the effort to pull down the Establishments.” However, with the fury of the French and Indian War which broke out in 1755, Presbyterians east of the Blue Ridge occupied houses of worship without license or molestation (Ibid., pp. 22-25, citing Foote, “Sketches of Virginia,” pp. 99, 160-162, 307, 308).

IV. Regular Baptists applied for license and took oaths; Separate Baptists stood for religious freedom, had success because of the power of God and the immorality of the established clergy; Separate Baptists grew in number and power; the ministry of Samuel Harris

Different bodies of Baptists came to Virginia during the colonial period. The “Regular Baptists,” like the Presbyterians, “applied for license and took the prescribed oaths.” As for the “Separate Baptists,” the “body spread so rapidly throughout the State from 1755 to the … Revolution,” and “did not recognize the right of any civil power to regulate preaching or places of meeting.” They were the “most active in evangelizing Virginia and most severely persecuted, and … had the largest share of the work of pulling down the ‘Establishment’ and securing religious liberty for all.” “While yielding a ready obedience to the civil authorities in all civil affairs, in matters of religion they recognized no lord but Christ. They were truly apostolic in refusing to obey man rather than God” (Ibid., pp. 12-14, 26).

Conditions were favorable for the rapid growth of Baptist principles. “First, the distress of the colonists, consequent upon the French and Indian wars, inclined them towards religion.” Secondly, the distressed people could find no solace or comfort in the immoral established clergy.

“The great success and rapid increase of the Baptists in Virginia must be ascribed primarily to the power of God working with them. Yet it cannot be denied but that there were subordinate and cooperating causes; one of which, and the main one, was the loose and immoral deportment of the Established clergy, by which the people were left almost destitute of even the shadow of true religion. ‘Tis true, they had some outward forms of worship, but the essential principles of Christianity were not only not understood among them, but by many never heard of. Some of the cardinal precepts of morality were discarded, and actions plainly forbidden by the New Testament were often proclaimed by the clergy as harmless and innocent, or, at worst, foibles of but little account. Having no discipline, every man followed the bent of his own inclination. It was not uncommon for the rectors of parishes to be men of the lowest morals. The Baptist preachers were, in almost every respect, the reverse of the Established clergy’” (Ibid., pp. 26-27, citing Robert B. Semple, “History of the Baptists of Virginia,” 1810, p. 25).

The bad character and actions of the established clergy are proven by their own authorities. Many of that clergy came to Virginia “to retrieve either lost fortune or lost character….” “Many of them had been addicted to the race-field, the card-table, the theatre—nay, more, to drunken revel, etc….” “They could babble in a pulpit, roar in a tavern, exact from their parishioners, and rather by their dissoluteness destroy than feed the flock” (Ibid., pp. 27-28, citing Foote, p. 38 quoting from the Bishop of London; Bishop Meade, “Old Parishes and Families of Virginia” (Vol. I, 118, 385, etc.; Dr. Hawks, “History of the Protestant Episcopal Church of Virginia,” p. 65.)).

The Baptists grew stronger and more numerous in Virginia. The first Baptist church in Virginia was established in 1714 by Robert Nordin who arrived from England. By 1755, there were six Baptist churches in Virginia (James R. Beller, America in Crimson Red: The Baptist History of America (Arnold, Missouri: Prairie Fire Press, 2004), pp. 140-142). 1758 to 1769 was a period of slow but persistent growth in the face of a determined popular hostility. The early opposition to the Baptists came from the lower classes and was based upon prejudice.

The Virginia expansion was intimately tied up with the ministry of Colonel Samuel Harris. Harris who served at various times as church warden, sheriff, justice of the peace, colonel of the county, and captain and commissary of Fort Mayo and its military garrison, was the first person of prominence to join the Separates in Virginia and was just one of many examples of the power of this movement. He was saved at a house meeting after hearing a sermon preached by a Separate Baptist from North Carolina. He resigned from his official positions and narrowed his business interests almost to the vanishing point in order to preach. He began to preach throughout Virginia, and many were converted as a result of his ministry (Lumpkin, pp. 48-49).

Harris was a fearless preacher. “The excellence of his preaching lay chiefly in ‘addressing the heart,’ and Semple holds that ‘perhaps even Whitefield did not surpass him in this’” (Ibid., p. 90, citing A. B. Semple, A History of the Rise and Progress of the Baptists of Virginia (Richmond: Pitt & Dickinson, 1894), p. 380). He had the assistance of several North Carolina itinerant evangelists planting the earliest Separate churches in south central Virginia. The Dan River Church was started in 1760 by Daniel Marshall and Philip Mulkey with seventy-four charter members, eleven of whom were Negroes. Other churches were soon constituted from the Dan River Church (Ibid., pp. 90-98).

Wherever the Baptist itinerants preached, great crowds came to hear them. Many were converted in Virginia, and many Baptist churches were started. In 1770, there were only two Separate churches north of the James River, four south of it. The General Association of Separate Baptists of Virginia was held in May, 1771 in Orange County with twelve churches represented, and three not represented.

By 1772 the Separate Churches outnumbered those of the Regular churches. In that year, as many as forty thousand Virginians may have heard the gospel. By 1773 thirty-four churches were represented at the General Association meeting, and they reported a combined membership of 3,195. By May, 1774, when Baptist expansion and Baptist persecution were at high tide, the Southern District in Virginia had twenty-seven churches with 2,033 members and the Northern District had twenty-four churches with 1,921 members. By the end of 1774, there was at least one Separate Baptist church in twenty-eight of the sixty counties of Virginia. During the Revolution, Baptist growth continued, but at a much slower pace (Ibid., pp. 90-103).

V. Severe persecution of Baptists from 1768-1774

From 1768 through 1774, the Baptists were persecuted severely. “Baptist preachers were whipped, arrested, fined, imprisoned on bread and water, although the authorities sanctimoniously denied that punishment was for ‘preaching’; the crime they said, was ‘breach of the peace’ (Pfeffer, p. 95. citing Edward F. Humphrey, Nationalism and Religion in America (Boston: Chipman Law Publishing Co., 1924), p.370).”  The first instance of actual imprisonment was on June 4, 1768 when John Waller, Lewis Craig, James Childs, James Reed, and William Marsh were arrested at Craig’s meetinghouse in Spotsylvania and charged with disturbing the peace. The magistrates offered to release them if they would promise to preach no more for a year and a day. They refused and were jailed. Many more were jailed and otherwise persecuted until 1774 (James, pp. 29-30. Included is a listing of some of those jailed and otherwise persecuted. See also, Beller, America in Crimson Red, pp. 230-250; Lumpkin, pp. 105-120; Dr. William P. Grady, What Hath God Wrought: A Biblical Interpretation of American History (Knoxville, Tennessee: Grady Publications, Inc., 1999), Appendix A, pp. 593-598 citing Lewis Peyton Little, Imprisoned Preachers and Religious Liberty in Virginia, (Galatin, Tenn.: Church History Research and Archives, 1987), pp. 516-520 (lists many Baptists and the persecutions they endured in Virginia; persecutions such as being jailed for preaching, civil suit, being annoyed by men drinking and playing cards, being jerked off stage and head beaten against the ground, hands being slashed, beaten with bludgeons, being shot with a shotgun, ousted as a justice for preaching, being brutally beaten by a mob, severely beaten with a stick, etc.)).

 “[The persecutors] seemed sometimes to strive to treat the Baptists and their worship with as much rudeness and indecency as was possible. They often insulted the preacher in time of service, and would ride into the water and make sport when they administered baptism. They frequently fabricated and spread the most groundless reports, which were injurious to the characters of the Baptists. When any Baptist fell into any improper conduct, it was always exaggerated to the utmost extent” (James, p. 30, citing Semple, p. 19).
“The enemy, not contented with ridicule and defamation, manifested their abhorrence to the Baptists in another way. By a law then in force in Virginia, all were under obligation to go to church several times a year; the failure subjected them to fine. [Little action against members of the Established church was taken under this law, but] as soon as the ‘New Lights’ were absent, they were presented by grand jury, and fined…. [Others were imprisoned for preaching without a license.] ‘When persecutors found religion could not be stopped … by ridicule, defamation, and abusive language, the resolution was to take a different step and see what they could do; and the preachers in different places were apprehended by magisterial authority, some of whom were imprisoned and some escaped. Before this step was taken, the parson of the parish was consulted [and he advised that] the ‘New Lights’ ought to be taken up and imprisoned, as necessary for the peace and harmony of the old church…’” (Ibid., pp. 30-31, citing William Fristoe, “History of the Ketocton Baptist Association,” p. 69).
“[An Episcopalian wrote,] No dissenters in Virginia experienced, for a time, harsher treatment than did the Baptists. They were beaten and imprisoned, and cruelty taxed its ingenuity to devise new modes of punishment and annoyance” (Ibid., citing Dr. Hawks, “History of the Protestant Episcopal Church of Virginia,” p. 121).

VI. Baptists petitioned Virginia House of Burgesses for relief, Presbyterians petitioned for favors; James Madison writes on the persecutions, establishment which leads to pride, ignorance, knavery, and corruption, freedom of conscience, etc.

As a result of the persecutions and oppressions, Baptists began to petition the House of Burgesses for relief. Their first petition in 1770 requesting that Baptist ministers “not be compelled to bear arms or attend musters” was rejected. Other petitions from Baptists in several counties were submitted in 1772 requesting that they “be treated with the same indulgence, in religious matters, as Quakers, Presbyterians, and other Protestant dissenters enjoy.” The petitions continued until 1775 (Ibid., pp. 31-35). The Presbyterians petitioned also, but for the right to incorporate so that they could receive and hold gifts of land and slaves for the support of their ministers. One of the Presbyterian petitions was improperly hailed as proof “that the Presbyterians anticipated the Baptists in their memorials asking for religious liberty.” An examination of that petition reveals that it “contemplate[d] nothing more than securing for Presbyterians and others in Virginia the same privileges and liberties which they enjoyed in England under the Act of Toleration,” and contained no “attack upon the Establishment, or any sign of hostility to it” (Ibid., pp. 42-47).

During this time, James Madison wrote to his old college friend, Bradford of Philadelphia in a letter dated January 24, 1774. He expressed his belief that if

“uninterrupted harmony had prevailed throughout the continent [in matters of established religion as practiced in Virginia] it is clear to me that slavery and subjection might and would have been gradually insinuated among us. Union of religious sentiments begets a surprising confidence, and ecclesiastical establishments tend to great ignorance and corruption, all of which facilitates the execution of mischievous projects…. Poverty and luxury prevail among all sorts; pride, ignorance, and knavery among the priesthood, and vice and wickedness among the laity. This is bad enough; but it is not the worst I have to tell you. That diabolical, hell-conceived principle of persecution rages among some, and to their eternal infamy, the clergy can furnish their quota of imps for such purposes. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk, or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience…. So I must beg you to pity me, and pray for liberty of conscience to all” (Ibid., p. 36).
[In another letter to Bradford dated April 1, 1774, Madison wrote that he doubted that anything would be done to help the dissenters in the Assembly meeting beginning May 1, 1774.] He spoke of “the incredible and extravagant stories [which were] told in the House of the monstrous effects of the enthusiasm prevalent among the sectaries, and so greedily swallowed by their enemies…. And the bad name they still have with those who pretend too much contempt to examine into their principles and conduct, and are too much devoted to ecclesiastical establishment to hear of the toleration of the dissentients…. The liberal, catholic, and equitable way of thinking, as to the rights of conscience, which is one of the characteristics of a free people, and so strongly marks the people of your province, is little known among the zealous adherents to our hierarchy…. [Although we have some persons of generous principles in the legislature] the clergy are a numerous and powerful body, have great influence at home by reason of their connection with and dependence on the bishops and crown, and will naturally employ all their arts and interest to depress their rising adversaries; for such they must consider dissentients, who rob them of the good will of the people, and may in time endanger their livings and security.
“… Religious bondage shackles and debilitates the mind, and unfits if for every enterprise, every expanded prospect” (Ibid., pp. 35-38, citing Rives Life and Times of Madison, Vol. I, pp. 43, 53; Norman Cousins, In God We Trust (Kingsport, Tennessee: Kingsport Press, Inc., 1958), pp. 299-301).

VII. Intolerance and persecution were ended because of the Revolution; the Baptists push for religious freedom and the end of the establishment; Virginia became the second colony to recognize religious liberty in a new Constitution in 1776 (Patrick Henry proposed tolerance, but James Madison pushed religious liberty-which he learned from the Baptists-and explained the difference)

1775 closed the period of “Intolerance, Toleration, and Persecution.”

“The colony is involved in trouble with the mother country. Virginia has denounced the ‘Boston Port Bill,’ and made common cause with Massachusetts. The First Continental Congress has already met in Philadelphia. Patrick Henry has electrified the country by his memorable speech in the popular Convention which met March, 1775…. The Battles of Lexington and Concord have been fought (April 19), and Virginia has taken steps to enroll companies of volunteers in every county. The war of the Revolution is on, and the times call for union and harmony among all classes. Hence, there is no more persecution of Baptists. There are no more imprisonments in 1775, and that obnoxious Toleration Bill is indefinitely postponed. The same ruling class that admitted the Presbyterians to Virginia and to the benefits of the Act of Toleration, on condition that they occupied the frontier counties, and thus protected them against Indian raids, are now inclined to tolerate, not only the Presbyterians, but the Baptists also, with all their ‘pernicious doctrines,’ if only they will help in the struggle with Great Britain. The Baptists will help, and not a Tory will be found among them. But they will strike for something more and something dearer to them than civil liberty—for freedom of conscience, for ‘just and true liberty, equal and impartial liberty’” (James, pp. 47-48).

The Baptists were ready to push for religious freedom and abolition of the establishment. In their Association meeting on the fourth Saturday of May, 1775, “they were to a man favorable to any revolution by which they could obtain freedom of religion. They had known from experience that mere toleration was not a sufficient check, having been imprisoned at a time when that law was considered by many as being in force.” They decided to circulate petitions throughout the state calling for abolition of the church establishment and freedom of religion, and also to appoint commissioners to present their address for military resistance to British oppression and “offering the services of their young men as soldiers and asking only that, so far as the army was concerned, their ministers might enjoy like privileges with the clergy of the Established church” to the State Convention which was the House of Burgess under a new name and in a different character. The Convention, still controlled by “the same class that had, a few years before made concessions to the … Presbyterians on condition that they settle on the western counties forming a line of defense against the Indians, resolved to allow those dissenters in the military who so desired to attend divine worship administered by dissenting preachers. This first step towards placing all Virginia clergy on an equal footing, came as a result of the need for the numerical strength of the Baptists in what was considered by the establishment in 1775 a “struggle for their rights ‘in the union’ [with England].” The Convention maintained their “faith and true allegiance to His Majesty, George the Third, [their] only lawful and rightful King.” “It would have been very impolitic, even if their petitions had been ready, to have sprung the question of disestablishment upon [the Convention] before they had committed themselves to the cause of independence” (Ibid., pp. 49-57).

Virginia adopted a new constitution in 1776. The Convention of 1776 was, by its act, made the “House of Delegates” of the first General Assembly under the new constitution. There were twenty-nine new members in this meeting that were not in the 1775 Convention. “[W]hen there was anything near a division among the other inhabitants in a county, the Baptists, together with their influence, gave a caste to the scale, by which means many a worthy and useful member was lodged in the House of Assembly and answered a valuable purpose there” (Ibid., p. 58). Among those favorable to Baptist causes was James Madison. On May 12, the Congress met in Philadelphia “and instructed the colonies to organize independent governments of their own. The war was on.” On May 15, the Convention resolved to declare the “colonies free and independent states” and that a committee be appointed to prepare Declaration of Rights and a plan of government which would “maintain peace and order” and “secure substantial and equal liberty to the people” (Ibid., pp. 58-62).

Other than Rhode Island, Virginia was the first colony to recognize religious liberty “in her organic law, and this she did in Article XVI. of her Bill of Rights, which was adopted on the 12th day of June, 1776” (Ibid p. 10.). In 1776 the Virginia state convention was beset by petitions from all over Virginia seeking religious freedom and freedom of conscience. Patrick Henry proposed the provision to section sixteen of the Virginia Bill of Rights which granted religious tolerance (Marnell, pp. 94-95; James, pp. 62-65). On June 12 the House adopted a Declaration of Rights. The 16th Article provided for religious tolerance. However, [o]n motion on the floor by James Madison, the article was amended to provide for religious liberty. In committee, Madison opposed toleration because toleration “belonged to a system where there was an established church, and where it was a thing granted, not of right, but of grace. He feared the power, in the hands of a dominant religion, to construe what ‘may disturb the peace, the happiness, or the safety of society,’ and he ventured to propose a substitute, which was finally adopted” (James, pp. 62-65). He probably moved to change the amendment before the whole house in order to demonstrate his position to the Baptists who were viewing the proceedings. The proposed amendment read:

“That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other” (Ibid., pp. 62-64; Pfeffer, p. 96).

“The adoption of the Bill of Rights marked the beginning of the end of the establishment” (Pfeffer, p. 96).

Where did Madison learn the distinction between religious freedom and religious toleration?

“It had not then begun to be recognized in treatises on religion and morals. He did not learn it from Jeremy Taylor or John Locke, but from his Baptist neighbors, whose wrongs he had witnessed, and who persistently taught that the civil magistrate had nothing to do with matters of religion” (James, p. 63 quoting Dr. John Long).

Madison studied for the ministry at Princeton University, then the College of New Jersey, under John Witherspoon. When he returned to Virginia, he continued his theological interests and developed a strong concern for freedom of worship.

“At the time of Madison’s return from Princeton, several ‘well-meaning men,’ as he described them, were put in prison for their religious views. Baptists were being fined or imprisoned for holding unauthorized meetings. Dissenters were taxed for the support of the State Church. Preachers had to be licensed. Madison saw at first hand the repetition of the main evils of the Old Country. But he also saw a deep dissatisfaction among the people—the kind of dissatisfaction that would grow and that would serve as a mighty battering ram for religious freedom” (Cousins, p. 296).

It appears that the Baptists were the only denomination of Christians that addressed the 1775 and 1776 conventions on the subject of the rights of conscience. Not until the Revolution in Virginia were the Presbyterians free from the agreement with Governor Gooch. When the Assembly met in October 1776, they were “powerful allies of the Baptists and other dissenters in the war against the Establishment” (James, pp. 66-67).

VIII. 1776-1786 the battle for soul liberty was on;1776 compromise bill sounded the death knell of Anglicanism; 1776-1779 assembly daily contests between the “contending factions” with a flood of undeviating and uncompromising Baptist petitions as well as watered down Presbyterian and Methodist petitions; Jefferson introduced his Bill for Religious Liberty; a ‘bill establishing provision for teachers of the Christian religion,’ sponsored by Patrick Henry, opposed by Madison who prepared his famous “Memorial and Remonstrance” (quoted below) in opposition; legislature passed a bill incorporating the Episcopal church in 1785; January 16, 1786, the Virginia Act for Religious Liberty, drafted by Thomas Jefferson, was passed

“From that time down to January 19, 1786, when Jefferson’s ‘Bill for Establishing Religious Freedom,’ became the law of the State, the battle for soul liberty was on” (Ibid., p. 10), and the process of disestablishment gathered momentum. The legislature of 1776 repealed the laws punishing heresy and absence from worship and exempted dissenters from paying taxes for support of the Church. Although this bill was a compromise, it sounded the death knell of the Anglican establishment. A later statute removed the law fixing the salaries of clergymen, and the position of the Established church was limited more and more until the Declaratory Act of 1787 ended establishment in Virginia (Marnell, pp. 94-95; Pfeffer, p. 96).

“From 1776 to 1779 the assembly was engaged almost daily in the desperate contests between the contending factions” (Pfeffer, p. 97). Whereas only one Baptist petition had been presented to the first Convention in 1776, and that after the adoption of the Bill of Rights, the Legislature which assembled on October 7, 1776 was immediately flooded with petitions both for and against establishment. “None of the petitions against establishment were from Baptists as such. However, historians of the times admit that Baptists ‘were not only the first to begin the work, but also the most active in circulating petitions for signatures.’” “Among the signers were some of all denominations of Christians, and many of no denomination. This explains why the Baptist petition or petitions were from dissenters in general, instead of from Baptist dissenters in particular” (James, p. 74. See pp. 68-74 for the petitions against establishment.). The Reverend E. G. Robinson, in his review of Rives’ Life and Times of James Madison, Christian Review of January, 1860, said, “The [Presbyterians] argued their petitions on various grounds, and indeed sought for different degrees of religious freedom, while the [Baptists] were undeviating and uncompromising in their demands for a total exemption from every kind of legal restraint or interference in matters of religion” (Ibid., p. 82).The Methodists and the established church presented petitions for establishment (Ibid., pp. 75-78. The petitions of the Methodists and the established church are quoted and the author comments on the petition of the established church.).

The established church did not give up. Thomas Jefferson gave an account of the struggle through which the Legislature, meeting in late 1776, had just passed:

“The first republican Legislature, which met in 1776, was crowded with petitions to abolish this spiritual tyranny. These brought on the severest contest in which I have ever been engaged…. The petitions were referred to a Committee of the Whole House on the State of the Country; and, after desperate contests in the committee almost daily from the 11th of October to the 5th of December, we prevailed so far only as to repeal the laws which rendered criminal the maintenance of any religious opinions (other than those of the Episcopalians), the forbearance of repairing to the (Episcopal) church, or the exercise of any (other than the Episcopal) mode of worship; and to suspend only until the next session levies on the members of that church for the salaries of its own incumbents. For, although the majority of our citizens were dissenters, as has been observed, a majority of the legislature were churchmen. Among these, however, were some reasonable and liberal men, who enabled
us on some points to obtain feeble majorities. But our opponents carried, in the general resolutions of November the 19th, a declaration that religious assemblies ought to be regulated, and that provision ought to be made for continuing the succession of the clergy and superintending their conduct. And in the bill now passed was inserted an express reservation of the question whether a general assessment should not be established by law on every one to the support of the pastor of his choice; or whether all should be left to voluntary contributions; and on thus question, debated at every session from 1776 to 1779 (some of our dissenting allies, having now secured their particular object, going over to the advocates of a general assessment,) we could only obtain a suspension from session to session until 1779, when the question against a general assessment was finally carried, and the establishment of the Anglican church entirely put down” (Ibid., pp. 80-81; See also, Pfeffer, p. 96).

Legislative meetings from 1776 to December 1779 were presented with memorials both for and against establishment (James, pp. 84-91 quotes those memorials).

When the House met in June 1779, petitions presented to the Assembly showed that the old establishment and its friends were fighting for some sort of compromise on the basis of a general assessment. In 1779, the assembly repealed all laws requiring members of the Episcopal Church to contribute to the support of their own ministry (Pfeffer, p. 97). In December 1779, a bill passed which “cut the purse strings of the Establishment, so that the clergy could no longer look for support to taxation. But they still retained possession of the rich glebes, and enjoyed a monopoly, almost, of marriage fees” (James, p. 95). It took until 1779 to pass a bill taking away tax support for the clergy because the dissenters, with the exception of the Baptists, “having been relieved from a tax which they felt to be both unjust and degrading, had no objection to a general assessment” (Ibid., pp. 96-98).

“Jefferson sought to press the advantage, and introduced his Bill for Establishing Religious Freedom, but Virginia was not quite ready to formalize the separation which had in effect taken place, and the bill was not voted on” (Pfeffer, p. 97). Instead “a bill was introduced which declared that “the Christian Religion shall in all times coming be deemed and held to be the established Religion of this Commonwealth.” This bill required everyone to register with the county clerk stating which church he wished to support (Ibid., citing R. Freeman Butts, The American Tradition in Religion and Education (Boston: Beacon Press, 1950), pp. 53-56).

Although various petitions were presented to the Assembly during the period from 1780 until the end of the Revolution on September 3, 1783, the General Assembly did very little regarding the cause of religious liberty. In 1783 “the project … of incorporating, or establishing as the religion of the State, all the prevailing denominations, and assessing taxes upon the people to support the ministers of all alike, was now warmly advocated by Presbyterians, Episcopalians, and Methodists, and becoming quite popular. To this scheme the Baptists still gave the most determined opposition, and sent up against it the most vigorous remonstrances.” The Baptists also continued to petition for the adoption of the Act to Establish Religious Freedom (James, pp. 112-121 citing Dr. R. B. C. Howell, “Early Baptists of Virginia” for the quotation which is on p. 120).

After the Revolution, numerous petitions and memorials were presented to the House of Delegates in 1784 and 1785 by the above-mentioned denominations in support of their positions (Ibid., pp. 122-133). The Episcopalians sought to recover lost ground. “In the late spring of 1784, a resolution was introduced in the Virginia Assembly seeking official recognition for the Episcopal Church. The resolution was debated for two days, with notable opposition from Baptists and Presbyterians” (Cousins, p. 301). Madison, in a letter to Thomas Jefferson dated July 3, 1784, wrote concerning this resolution:

“The Episcopal clergy introduced a notable project for re-establishing their independence of laity. The foundation of it was that the whole body should be legally incorporated, invested with the present property of the Church, made capable of acquiring indefinitely—empowered to make canons and by-laws not contrary to the laws of the land, and incumbents when once chosen by vestries, to be immovable otherwise than by sentence of the Convocation” (Ibid., p. 302).

The Baptists continued their uncompromising stand against any vestige of union of church and state. They gave their reasons for their position against a general assessment:

“First, it was contrary to their principles and avowed sentiments, the making provision for the support of religion by law; that the distinction between civil and ecclesiastical governments ought to be kept up without blending them together; that Christ Jesus hath given laws for the government of his kingdom and direction of his subjects, and gave instruction concerning collections for the various purposes of religion, and therefore needs not legislative interference.
“Secondly, should a legislative body undertake to pass laws for the government of the church, for them to say what doctrines shall be believed, in what mode worship shall be performed, and what the sum collected shall be, what a dreadful precedent it would establish; for when such a right is claimed by a legislature, and given up by the people, by the same rule that they decide in one instance they may in every instance. Religion is like the press; if government limits the press, and says this shall be printed and that shall not, in the event it will destroy the freedom of the press; so when legislatures undertake to pass laws about religion, religion loses its form, and Christianity is reduced to a system of worldly policy.
“Thirdly, it has been believed by us that that Almighty Power that instituted religion will support his own cause; that in the course of divine Providence events will be overruled, and the influence of grace on the hearts of the Lord’s people will incline them to afford and contribute what is necessary for the support of religion, and therefore there is no need for compulsory measures.
“Fourthly, it would give an opportunity to the party that were numerous (and, of course, possessed the ruling power) to use their influence and exercise their art and cunning, and multiply signers to their own favorite party. And last, the most deserving, the faithful preacher, who in a pointed manner reproved sin and bore testimony against every species of vice and dissipation, would in all possibility, have been profited very little by such a law, while men-pleasers, the gay and the fashionable, who can wink at sin and daub his hearers with untempered mortar, saying, ‘Peace, peace,’ when there is no peace, who can lay out his oratory in dealing out smooth things mingled with deception, the wicked, it is clear, would like to have it so; and it follows the irreligious and carnal part of the people would richly reward them for their flattery, and the undeserving go off with the gain” (James, pp. 132-133, citing William Fristoe, “History of the Ketocton Association”).

The Presbyterians took “a sort of middle ground, which caused confusion in their own ranks and compromised them in the estimation of others.” It appears that the Presbyterian clergy advocated a plan of general assessment supporting all denominations who believed in union of church and state, but not those who believed in religious liberty and absolute freedom of conscience. James Madison commented on the position of the Presbyterians:

“The laity of the other sects (other than Episcopalian) are generally unanimous [against the general assessment]. So are all the clergy, except the Presbyterian, who seem as ready to set up an establishment which is to take them in as they were to pull down that which shut them out. I do not know a more shameful contrast than might be found between their memorials on the latter and former occasions. Rives, I., 630” [Quoting a letter to James Monroe, April 12, 1775] (Ibid., p. 130; Cousins, p. 306)

Thus, “[i]n [these] later stages of disestablishment there was a curious alliance formed between the Episcopalian and Presbyterian clergy with an eye to creating a new line of defense” (Marnell, p. 95). “In 1784, the Virginia House of Delegates having under consideration a ‘bill establishing provision for teachers of the Christian religion,’ postponed it until the next session, and directed that the Bill should be published and distributed, and that the people be requested ‘to signify their opinion respecting the adoption of such a bill at the next session of assembly” (Reynolds v. United States, 98 U.S. 145, 163 (1879); see James, p. 129 where the preamble to the bill is quoted.). This last action was a result of a resolution offered by the Baptists and adopted by the Legislature. The Baptists, appearing to be losing ground as the only opponents of a general assessment, the majority of the Legislature being churchmen, the only hope of the opponents of the assessment was an appeal to the people (James, p. 135).

The bill—which was proposed by Patrick Henry and supported by George Washington, Richard Henry Lee, and John Marshall—provided for the establishment a provision for teachers of the Christian religion, in effect providing for the “establishment of Christianity, but without precedence in such an establishment to any particular church” (Marnell, pp. 95, 96). The bill required all persons

“to pay a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian worship” (Pfeffer, p. 98, citing N. J. Eckenrode, The Separation of Church and State in Virginia (Richmond, Va.: Virginia State Library, 1910), p. 86. Pfeffer notes in Chapter 4 fn. 102 that the text of the bill is printed as an appendix to Justice Rutledge’s dissent in Everson, 330 U.S. 1.).

Leo Pfeffer noted that:

“the bill was predicated on the legislative determination in its preamble that ‘the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society; which cannot be effected without a competent provision for licensed teachers.’
“The preamble is of great significance, because it recognized the widely held belief that religion was not within the competence of civil legislatures. It sought to justify intervention not on any theocratic ground but on what today would be called the ‘police’ or ‘welfare’ power. Government support of religion is required to restrain vice and preserve peace, not to promote God’s kingdom on earth” (Ibid.).

Pfeffer does not understand, nor does the modern Supreme Court, that God has given civil government the choice of whether to honor His principles. The government is to intervene, according to God’s Word, to control and restrain certain crimes. Government does not support religion in order to do its job. Government merely makes a choice of whether to honor God and His principles for the purpose of restraining vice and preserving peace.

James Madison, among others, opposed the bill. Mr. Madison had witnessed and opposed the persecution of the Baptists in his own state.

“Madison wrote to a friend in 1774: ‘That diabolical, hell-conceived principle of persecution rages among some…. This vexes me the worst of anything whatever. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk, or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. So I must beg you to pity me, and pray for liberty of conscience to all.’ I Writings of James Madison (1900) 18, 21” (Everson, 330 U.S. fn. 9 at 11; 67 S. Ct. at 509).

Mr. Madison prepared his famous “Memorial and Remonstrance,” in which he maintained “that religion, or the duty we owe the Creator,” was not within the cognizance of civil government. The “Memorial” presents fifteen arguments against the assessment bill (Pfeffer, p. 101. Pfeffer, a secularist scholar states that “[i]t is important to note the emphasis the ‘Memorial’ places on ideological factors.” His comments following that quote ignore the references to our “creator,” and the “Governor of the Universe.” A reading of Pfeffer’s writings emphasizes the need for Christians to read and analyze themselves from a biblical perspective the issues of the day and to become involved deeply in those issues.). One historian says of this document, “For elegance of style, strength of reasoning, and purity of principle, it has, perhaps, seldom been equaled, certainly never surpassed, by anything in the English language” (James, p. 135, quoting Semple). “Dr. George B. Taylor says: ‘It may certainly be called a Baptist document this far, that they only, as a people, held its views, and pressed those views without wavering’” (Ibid., p. 135, quoting Dr. George B. Taylor, Memorial Series, No. IV., page 19). Dr. E. G. Robinson wrote of the document:

“In a word, the great idea which he [Madison] put forth was identical with that which had always been devoutly cherished by our Baptist fathers, alike in the old world and the new, and which precisely a century and a half before had been perfectly expressed in the celebrated letter of Roger Williams to the people of his settlement, and by him incorporated into the fundamental law of the colony of Rhode Island. By Mr. Madison it was elaborated with arguments and wrought into the generalizations of statesmanship, but the essential idea is precisely the same with the ‘soul liberty’ so earnestly contended for by the Baptists of every age” (Ibid., p. 135).

One must keep in mind that although the document advocated freedom of conscience, something for which Baptists had long struggled, the tone was that of deistic or humanistic arguments based upon reason and natural law. As pointed out supra,Jefferson and Madison and other deistic separatists “were interested in leaving the mind free to follow its own rational direction.” A trust in man’s reason without consideration of principles in the Word of God is a leaven which eventually totally pollutes. Tragically, the pietistic arguments of Isaac Backus never prevailed in America. America never fully proceeded upon the lessons taught by the Bible, and implemented by Roger Williams, John Clarke, and the other founders of Rhode Island.

Some excerpts from Madison’s “Memorial and Remonstrance” follow:

“Because we hold it for a fundamental and unalienable truth, ‘that religion, or the duty which we owe to the Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence,’ the religion, then of every man, must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. The right is, in its nature, an unalienable right. It is unalienable, because the opinions of men depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men. It is unalienable, also, because what is here a right towards man, is a duty towards the Creator…. The duty is precedent both in order and time, and in degree of obligation, to the claims of civil society, he must be considered as a subject of the Governor of the Universe…. We maintain, therefore, that in matters of religion, no man’s rights is abridged by the institution of civil society; and that religion is wholly exempt from its cognizance….
“Because if religion be exempt from the authority of society at large, still less can it be subject to that of the legislative body. The latter are but the creatures and viceregents of the former. Their jurisdiction is both derivative and limited…. The preservation of a free government requires, not merely that the metes and bounds which separate each department of power, be invariably maintained; but more especially that neither of them be suffered to overleap the great barrier which defends the rights of the people. The rulers, who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are tyrants. The people who submit to it, are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.
“Because it is proper to take alarm at the first experiment on our liberties, we hold this prudent jealousy to be first duty of citizens, and one of the noblest characteristics of the late revolution…. Who does not see that the same authority, which can establish Christianity in exclusion of all other religions, may establish, with the same ease, any particular sect of Christians, in exclusion of all other sects; that the same authority, which can force a citizen to contribute three pence only of his property, for the support of any one establishment, may force him to conform to any other establishment, in all cases whatsoever?
“Because the bill violates that equality which ought to be the basis of every law; and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached…. Whilst we assert for ourselves a freedom to embrace, to profess, and observe the religion which we believe to be of divine origin, we cannot deny an equal freedom to those, whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offense against God, not against man. To God, therefore, and not to man, must account of it be rendered….
“Because the bill implies, either that the civil magistrate is a competent judge of religious truths, or that he may employ religion as an engine of civil policy. The first is an arrogant pretension, falsified by the extraordinary opinion of rulers, in all ages, and throughout the world; the second, an unhallowed perversion of the means of salvation.
“Because the establishment proposed by the bill, is not requisite for the support of the Christian religion itself; for every page of it disavows a dependence on the power of the world; it is a contradiction to fact, for it is known that this religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence: nay, it is a contradiction in terms; for a religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy: it is, moreover, to weaken in those, who profess this religion, a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those, who still reject it, a suspicion that its friends are too conscious of its faculties, to trust it to its own merits.
“Because experience witnesses that ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the clergy; ignorance and servility in the laity; in both, superstition, bigotry, and persecution. Inquire of the teachers of Christianity for the ages in which it appeared in its greatest luster; those of every sect point to the ages prior to its incorporation with civil policy. Propose a restoration of this primitive state, in which its teachers depended on the voluntary rewards of their flocks, many of them predict its downfall….
“Because the establishment in question is not necessary for the support of civil government…. If religion be not within the cognizance of civil government, how can its legal establishment be said to be necessary for civil government? What influences, in fact, have ecclesiastical establishments had on civil society? In some instances, they have been seen to erect a spiritual tyranny on the ruins of the civil authority; in more instances, have they been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the publick liberty, may have found on established clergy convenient auxiliaries. A just government instituted to secure and perpetuate it needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his religion, with the same equal hand which protects his person and property; by neither invading the equal hand which protects his person and property; by neither invading the equal rights of any sect, nor suffering any sect to invade those of another.
“Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every nation and religion, promised a luster to our country, and an accession to the number of its citizens…. [The proposed bill] is a signal of persecution. It degrades from the equal rank of citizens, all of those whose opinions in religion do not bend to those of the legislative authority. Distant as it may be, in its present form, from the inquisition, it differs from it only in degree; the one is the first step, the other the last, in the career of intolerance….
“Because it will have a tendency to banish our citizens…. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in religious opinion….
“Because the policy of the bill is adverse to the light of Christianity. The first wish of those, who ought to enjoy this precious gift, ought to be, that it may be imparted to the whole race of mankind. Compare the number of those, who have as yet received it, with the number still remaining under the dominion of false religions, and how small is the former? Does the policy of the bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of truth, from coming into the regions of it; and countenances, by example, the nations who continue in darkness, in shutting out those who might convey it to them….
“Because, finally, ‘the equal right of every citizen to the free exercise of his religion according to the dictates of his conscience,’ is held by the same tenure with all our other rights…. Either then we must say, that the will of the Legislature is the only measure of their authority; and that in the plentitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: either we must say, that they may control the freedom of the press; may abolish the trial by jury; may swallow up the executive and judiciary powers of the State; nay, that they have no authority our very right of suffrage, and erect themselves into an independent and hereditary assembly; or we must say that they have no authority to enact into a law, the bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority; and that no effort may be omitted on our part, against so dangerous an usurpation, we oppose to it this Remonstrance, earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may, on the one hand, turn their councils from every act, which would affront his holy prerogative, or violate the trust committed to them; and on the other guide them into every measure which may be worthy of His blessing, may redound to their own praise, and may establish more firmly the liberties, the property, and the happiness of the Commonwealth” (Beller, America in Crimson Red, pp. 512-515; Cousins, pp. 308-314).

Madison, who led the opposition, was able to obtain a postponement of consideration of the bill from December, 1784 to November, 1785. Before adjourning, the legislature passed a bill which incorporated the Protestant Episcopal Church,

“deemed necessary in order to regulate the status of that church in view of the severance of its subordination to the Church of England that had resulted from the Revolution. The bill gave the Episcopal ministers title to the churches, glebes, and other property, and prescribed the method of electing vestrymen.
“Even Madison voted for the incorporation bill, though reluctantly and only in order to stave off passage of the assessment bill. Nonetheless, the incorporation bill aroused a good deal of opposition” (Pfeffer, p. 99, citing Eckenrode, p. 100).

The people were against the assessment bill, and the Presbyterians reversed their position, opposed the bill, and for the first time, on August 10, 1785, the whole Presbyterian body supported Jefferson’s “Bill for Establishing Religious Freedom,” “although that bill had been before the Legislature since June, 1779.” The Baptists asked all counties which had not yet prepared a petition to do so and agreed to prepare a remonstrance and petition against the assessment. Thus the Presbyterians and Baptists stood together, but for different motives. Mr. Madison’s opinion was that the Presbyterians were “moved by either a fear of their laity or a jealousy of the Episcopalians. The mutual hatred of these sects has been much inflamed by the late act incorporating the latter…. Writings of Madison, I., 175” (James, pp. 134-139. Madison’s quote was from a letter to Mr. Jefferson).

Patrick Henry, the leading proponent of the assessment bill was elected governor, “depriving the bill of its ablest legislative leader.” The Memorial and Remonstrance had received wide distribution. At the next session the General Assembly was flooded with petitions and memorials from all parts of the State, overwhelmingly against the bill. The bill was defeated by three votes.

On January 16, 1786, the Virginia Act for Religious Liberty, drafted by Thomas Jefferson, was passed instead. That bill provided for religious liberty and freedom of conscience. It stated:

“I. Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the Holy Author of our religion, who being Lord of both body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;
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;
   thatto compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, 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 to righteousness, … that our civil rights have no dependence on our religious opinions any more than [on] our opinions in physics or geometry;
thattherefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; …
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 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;
thatit is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt [open, or public] acts against peace and good order;
and, finally, thattruth is great and will prevail if left to herself, that she is 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 [cease] to be dangerous when it is permitted freely to contradict them.
“II. Be it enacted by the General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened 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 opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
“III. And though we well know 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 her own, and that therefore to declare this act irrevocable would be of no effect in law, yet, as we are free to declare, and do declare, that the rights hereby asserted are of the natural right of mankind, and that if any act shall hereafter be passed to repeal the present or to narrow its operation, such act will be an infringement of natural rights” (Cousins, pp. 125-127; see also, for an edited version, Living American Documents, Selected and edited by Isidore Starr, Lewis Paul Todd, and Merle Curti, (New York, Chicago, Atlanta, Dallas, Burlingame: Harcourt, Brace & World, Inc., 1961), pp. 67-69).

The act included three factors: church, state, and individual. It protected the individual from loss at the hands of the state incursion into his church affiliation, and implicitly banned church establishment. “It did not attempt to define the relations between Church and State except in terms of the individual” (Marnell, pp. 96-97).

Thomas Jefferson, the author of the above bill, never swerved from his devotion to the complete independence of church and state. He wrote:

“The care of every man’s soul belongs to himself. But what if he neglect the care of it? Well, what if he neglect the care of his health or estate, which more clearly relate to the state. Will the magistrate make a law that he shall not be poor or sick? Laws provide against injury from others; but not from ourselves. God himself will not save men against their wills” (Pfeffer, p. 94, citing Saul K. Padover, The Complete Jefferson (New York: Duell, Sloan & Pearce, 1943), p. 943. Keep in mind that although Pfeffer’s quotes of Jefferson and others often spoke of God and His sovereignty and freedom of conscience, Pfeffer passes over God as though He had not been mentioned.).
“But our rulers can have no authority over such natural rights, only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God….
“Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth” (Pfeffer, citing Joseph L. Blau, Cornerstones of Religious Freedom in America (Boston: Beacon Press, 1949), pp. 78-79).

According to biblical principles, the bill was right about some things and wrong about others. It was right about its position on freedom of conscience from interference by civil and ecclesiastical governments, about compelling contributions to opinions to which one is opposed, about forcing any contributions to any pastor whatsoever, and about its assertion “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.”

However, the act was wrong in four ways. First, it was wrong in not recognizing that the Word of God is the source of all ultimate truth. Second, it was wrong in not recognizing that God desires all nations to be under Him, and that judgment is the ultimate fate of all nations which are not under Him. Third, it was wrong in not recognizing that the only way to determine what acts against peace and good order against one’s fellow man is through God-given conscience and the study of the Word of God as led by the Holy Spirit. Fourth, the act was also wrong when it asserted “that truth is great and will prevail if left to herself, that she is 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, [for] errors [cease] to be dangerous when it is permitted freely to contradict them.” As mankind has proven over and over, truth never prevails. Ultimately, mankind always reverts to satanic principles instead of truth which is of God. Not recognizing this accelerates the ultimate deterioration and judgment of a nation.

IX. The Baptists continued the struggle to remove all vestiges of the establishment until the glebes were sold and all religious societies were placed on an equal footing

The Baptists continued their struggle to remove all vestiges of the establishment until 1802 when the glebes were sold and all religious societies were placed on equal footing before the law. The glebes were tracts of land and buildings built thereon for the accommodation of the minister and his family, all at the expense of the people within the parish. The Baptists fought to have the act incorporating the Episcopal church repealed. Reuben Ford and John Leland attended the first 1787 assembly meeting as agents in behalf of the Baptist General Committee (James, pp. 142-146). On August 10, 1787, the act incorporating the Episcopal church was repealed, and until 2001—when Jerry Falwell and trustees of the Thomas Road Baptist Church, who were joined by the American Civil Liberties Union, challenged the Virginia Constitutional provision forbidding the incorporation of churches in federal district court—no church in Virginia could be incorporated (See Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002)).

“The Baptists continued to memorialize the Legislature … and in 1799 that body passed an act entitled ‘An Act to Repeal Certain Acts, and to Declare the Construction of the Bill of Rights and the Constitution Concerning Religion,’ which act declared that no religious establishment had legally existed since the Commonwealth took the place of the regal government, repealed all laws giving to the Protestant Episcopal church any special privileges, and declared that ‘the act establishing religious freedom’ contains the true construction of the Bill of Rights and of the Constitution; but no order was given for the sale of the glebes” (James, pp. 142-145).

As the Anglican establishment in Virginia yielded to pressure from Baptists [and to a much lesser extent Presbyterians] so that religious liberty was established in that state, “[t]he same pressure, reinforced by the conditions of frontier living, ended the Anglican establishment in the Carolinas and Georgia…. [T]he conditions which made establishment possible never existed in the states admitted after Vermont, nor in the territories with the exception of unique Utah” (Marnell, p. 130).

By the time the Constitutional Convention convened in 1787, “three states, Rhode Island, New York, and Virginia granted full religious freedom. Pennsylvania, Delaware, and Maryland demanded in different degrees adherence to Christianity. New Jersey, North Carolina, South Carolina, and Georgia demanded Protestantism” (Ibid., p. 98).

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