Life of Jefferson: 12. Establishing Religious Freedom

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Life of Thomas Jefferson

12. Establishing Religious Freedom

he act for the establishment of Religious Freedom is perhaps the most interesting feature in the revised code of Virginia. With the exception of the Declaration of Independence, it is the most celebrated of the author's productions, and the one to which he recurred with the highest pride and satisfaction. The preamble which ushers in the act designates with peculiar emphasis the premises upon which the proposition was founded. The following is the preamble with the accompanying bill as originally composed by Jefferson:

"SECTION I. 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 burthens, 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 exalt it by 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 to righteousness; and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours 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 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 it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; that though indeed these are criminals 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 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.
"SECTION II. We the General Assembly of Virginia 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.
"SECTION 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 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."
The form in which Mr. Jefferson's bill received the sanction of the legislature varies somewhat from the above original draught.[note] "The variations," says the compiler of the Virginia statutes, "rendered the style less elegant, though they did not materially affect the sense." The bill was not acted upon until the year 1785, nor carried then but with considerable difficulty.

"The bill for establishing religious freedom," says the author, "I had drawn in all the latitude of reason and right. It still met with opposition; but with some mutilations in the preamble, it was finally passed; and a singular proposition proved that it's protection of opinion was meant to be universal. Where the preamble declares that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read "a departure from the plan of Jesus Christ, the holy author of our religion." The insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of it's protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination." (Autobiography, 1821. ME 1:67)
This act has been the standing model of legislation for the security of religious freedom in all parts of the Union since its inception; and there is not, we believe, a State which has legislated at all upon the subject that has not incorporated, either in its constitution or its statutory code, the substance of its provisions and in some instances, it phraseology.
On its promulgation in 1785, it excited great admiration and was copied into every newspaper that made any pretensions to liberality with approving comments. In Europe, it produced a considerable sensation. It was translated into all the principal languages, copied into the newspapers, reviews, and encyclopedias, and applauded beyond measure by the statesmen and philosophers of the ancient world. Mr. Jefferson was in France as resident minister at the Court of Versailles when the intelligence of its passage was received in Europe, and in his private letters to America of that date, he speaks of the admiration expressed for the act of religious freedom and the revised code generally.
In a letter to Mr. Wythe, dated from Paris on August 13, 1786, he thus writes:

"The European papers have announced that the assembly of Virginia were occupied on the revisal of their code of laws. This, with some other similar intelligence, has contributed much to convince the people of Europe that what the English papers are constantly publishing of our anarchy is false, as they are sensible that such a work is that of a people only who are in perfect tranquility. Our act for freedom of religion is extremely applauded. The ambassadors and ministers of the several nations of Europe resident at this court have asked of me copies of it to send to their sovereigns, and it is inserted at full length in several books now in the press; among others, in the new Encyclopedie. I think it will produce considerable good even in these countries, where ignorance, superstition, poverty, and oppression of body and mind in every form, are so firmly settled on the mass of the people, that their redemption from them can never be hoped. If the Almighty had begotten a thousand sons, instead of one, they would not have sufficed for this task. If all the sovereigns of Europe were to set themselves to work to emancipate the minds of their subjects from their present ignorance and prejudices, and that as zealously as they now endeavor the contrary, a thousand years would not place them on that high ground on which our common people are now setting out. Ours could not have been so fairly put into the hands of their own common sense had they not been separated from their parent stock and kept from contamination, either from them or the other people of the old world, by the intervention of so wide an ocean. To know the worth of this, one must see the want of it here." (ME 5:395 with correction)

he next distinguishing and fundamental change recommended by the revisal regarded the freedom of the unhappy sons and daughters of Africa, and proposed directly the emancipation of all slaves born after the passage of the act. The bill reported by the revisors did not itself contain this proposition, but an amendment containing it was prepared to be offered to the legislature whenever the bill should be taken up. "It was thought better," says the author, "that this should be kept back and attempted only by way of amendment." It was further agreed to embrace in the residuary proposition a clause, directing that the after-born slaves "should continue with their parents to a certain age, then be brought up at the public expense to tillage, arts or sciences according to their geniuses, till the females be eighteen and the males twenty-one years of age, when they should be colonized to such place as the circumstances of the time should render most proper, sending them out with arms, implements of household and of the handicraft arts, seeds, pairs of the useful domestic animals, etc.; to declare them a free and independent people, and extend to them our alliance and protection till they shall have acquired strength; and to send vessels at the same time to other parts of the world for an equal number of white inhabitants; to induce whom to migrate hither, proper encouragements were to be proposed." (Notes on Virginia, 1782. ME 2:191) But when the bill was taken up by the legislature in 1785, neither Mr. Jefferson nor Mr. Wythe, his chief coadjutor in the undertaking, were members, the former being absent on the Legation to France, and the latter, an officer of the judiciary department; so the contemplated amendment was not proposed, and the bill passed unaltered, being a mere digest of the existing laws on the subject without any intimation of a plan for future and general emancipation.
If there was any question connected with the freedom and happiness of mankind on which the genius of Mr. Jefferson kindled into an extravagance, incompatible with sobriety and right reason, it was that of the emancipation of slaves. It was hardly possible for him, as he declared, to write and be temperate on the subject. The quotations already given exhibit abundant evidence of the intensity with which he yearned -- to use his own language -- "for the moment of delivery to this oppressed description of men." The following exhortation was penned in France on learning the passage of the Slave Bill in Virginia without the adoption of his concerted amendment.

"What a stupendous, what an incomprehensible machine is man! Who can endure toil, famine, stripes, imprisonment, and death itself in vindication of his own liberty, and the next moment be deaf to all those motives whose power supported him through his trial and inflict on his fellow men a bondage, one hour of which is fraught with more misery than ages of that which he rose in rebellion to oppose. But we must await with patience the workings of an overruling Providence, and hope that that is preparing the deliverance of these, our suffering brethren. When the measure of their tears shall be full, when their groans shall have involved heaven itself in darkness, a God of justice will awaken to their distress and by diffusing light and liberality among their oppressors, or, at length, by exterminating thunder, manifest his attention to the things of this world, and that they are not left to the guidance of a blind fatality." (Answers submitted to Jean Nicholas de Meunier, 1786. ME 17:103)
The following paragraph in allusion to the same transaction of the legislature was written at the age of seventy-seven, in the year 1821. Time but added emphasis to his appalling predictions and strengthened his attachment to the plan of redemption originally proposed by him.

"It was found that the public mind would not yet bear the proposition, nor will it bear it even at this day. Yet the day is not distant when it must bear and adopt it or worse will follow. Nothing is more certainly written in the book of fate than that these people are to be free. Nor is it less certain that the two races, equally free, cannot live in the same government. Nature, habit, opinion has drawn indelible lines of distinction between them. It is still in our power to direct the process of emancipation and deportation peaceably and in such slow degree as that the evil will wear off insensibly, and their place be pari passu filled up by free white laborers. If on the contrary it is left to force itself on, human nature must shudder at the prospect held up. We should in vain look for an example in the Spanish deportation or deletion of the Moors. This precedent would fall far short of our case." (Autobiography, 1821. ME 1:72)

he "Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital" occupies a proud niche in the temple of revolutionary reform. The changes it proposed in the criminal code of the old world were of the most extensive character, and such as modern experience has proved not inconsistent with the protection and good order of society, while they prevented the sacrifice of human life. Theoretical writers had previously shaken the barbarous opinions which prevailed on the subject of penal jurisprudence, among whom Mr. Jefferson mentions Beccaria in particular as having "satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death." But no mitigation had been effected in practice, and the author of this act stands before the world as the first official lawgiver who, having advanced to the true theory of criminal ethics, went boldly and rationally to work to incorporate it into the body of civil jurisprudence. The legitimate object of all punishment being, in his opinion, discipline rather than vengeance, he made the reformation of the offender the fundamental maxim of his theory, and graduated his scale of penal sanctions by that standard. The punishment of death putting this subject entirely out of the question, he restrained its infliction to cases in which reformation was either hopeless or too hazardous to attempt. Succeeding legislators and moral philosophers have adopted the same principle for their guide, and pursuing it to a still greater extent, have effected still greater improvements on the ancient practice. It led eventually to the penitentiary system, now so well tested by experience as to have become nearly universal; and the idea was later carried so far as to have brought seriously in question the right and utility of capital punishment in any case. That strong confidence in the innate virtue of man which led Mr. Jefferson to exclude the agency of force from every portion of the revised system that came under his control, placed him at once on the same high and humane ground in relation to criminal jurisprudence that is maintained by the philanthropists of the present day.
The bill was brought forward in the legislature by Mr. Madison in 1785 and lost by a single vote. The intelligence of the country had not then advanced to a requisite point for sanctioning the opinions of the revisor on the subject of capital punishment. But on the whole, it was well, perhaps, that the bill was rejected, for it enabled the author to effect a substantial improvement on his original plan; to wit, the substitution of labor in solitary confinement for labor in the public works. The latter, it will be recollected, had been adopted by the revisors in place of punishment by death; but it had not then been essayed by actual experiment. Afterwards, in 1786, the experiment was tried in Pennsylvania for two years without approbation, when it was followed by the Penitentiary system on the principle of labor in confinement, which succeeded beyond calculation. About the same time, Mr. Jefferson, then in France, had heard of a benevolent society in England that had been indulged by the government in an experiment of the effect of labor in solitary confinement on some of their criminals, which experiment was proceeding auspiciously. The same idea had been suggested in France, and an architect of Lyons had proposed a well-contrived plan of a prison on the principle of solitary confinement. Attentive to these valuable hints, Mr. Jefferson procured a drawing of the prison proposed by this architect, and having a little before been written to by the governor of Virginia for a plan of a capitol and prison for the State, he sent him the Lyons drawing, "in the hope," he says, "that it would suggest the idea of labor in solitary confinement instead of that on the public works, which we had adopted in our revised code." This was in June, 1786. The principle, but not the exact form of the drawing, was preserved in the erection of what was called the Penitentiary at Richmond. In the mean time, the increasing intelligence and sensibility of the age were preparing the way for the general sweep of changes recommended by the revisors, and the public opinion was ripening by reflection and by the example of Pennsylvania for the adoption of the newly essayed substitute.
In 1796, therefore, after the steady humanization of ten years, the legislature resumed the subject of the criminal law and passed the bill reported by Mr. Jefferson with the substitution of solitary in the place of public labor. The diction of the text, however, was modernized, which the author had scrupulously avoided to prevent the arising of new questions by new expressions; and instead of the settled distinctions of murder and manslaughter preserved by him, the new terms of murder in the first and second degree were introduced. These alterations were probably not for the better, as they gave occasion for renewed questions of definition. The bill was brought forward the last time by Mr. G. K. Taylor, who was chiefly instrumental in procuring its passage with the amendments.

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