7263. RELIGION, Virginia laws respecting.—
The present [1782] state of our
[Virginia] laws on the subject of religion is
this. The convention of May, 1776, in their
declaration of rights, declared it to be a truth,
and a natural right, that the exercise of religion
should be free; but when they proceeded
to form on that declaration the ordinance
of government, instead of taking up every
principle declared in the bill of rights, and
guarding it by legislative sanction, they passed
over that which asserted our religious rights,
leaving them as they found them. The same
convention, however, when they met as a member
of the General Assembly in October, 1776,
repealed all acts of Parliament which had rendered
criminal the maintaining any opinions in
matters of religion, the forbearing to repair to
church, and the exercising any mode of worship;
and suspended the laws giving salaries to
the clergy, which suspension was made perpetual
in October, 1779. Statutory oppressions in
religion being thus wiped away, we remain at
present under those, only imposed by the common
law, or by our own acts of Assembly. At
the common law, heresy was a capital offence,
punishable by burning. Its definition was left to
the ecclesiastical judges, before whom the conviction
was, till the statute of the 1 El. c. 1.
circumscribed it, by declaring, that nothing
should be deemed heresy, but what had been
so determined by authority of the canonical
Scriptures, or by one of the four first general
councils, or by some other council, having for
the grounds of their declaration the express
and plain words of the Scriptures. Heresy,
thus circumscribed, being an offence against
the common law, our act of Assembly of October,
1777, c. 17, gives cognizance of it to the
General Court, by declaring that the jurisdiction
of that Court shall be general in all matters at
the common law. The execution is by the writ
De hæretico comburendo. By our act of Assembly
of 1705, c. 30, if a person brought up in
the Christian religion denies the being of a
God, or the Trinity, or asserts that there are
more gods than one, or denies the Christian
religion to be true, or the Scriptures to be of
divine authority, he is punishable on the first
offence by incapacity to hold any office or employment,
ecclesiastical, civil, or military; on
the second, by disability to sue, to take any gift
or legacy to be guardian, executor, or administrator,
and by three years' imprisonment, without
bail. A father's right to the custody of his
own children being founded in law on his right
of guardianship, this being taken away, they
may, of course, be severed from him, and put
by the authority of a court, into more orthodox
hands. This is a summary view of that
religious slavery under which a people have
been willing to remain, who have lavished their
lives and fortunes for the establishment of their
civil freedom. The error seems not sufficiently
eradicated, that the operations of the mind, as
well as the acts of the body, are subject to the
coercion of the laws. 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.
The legitimate powers of government extend
to such acts only as are injurious to others. [415]
But it does me no injury for my neighbor to
say there are twenty gods, or no god. It neither
picks my pocket nor breaks my legs. If it be
said, his testimony in a court cannot be relied
on, reject it then, and be the stigma on him.
Constraint may make him worse by making him
a hypocrite, but it will never make him a truer
man. It may fix him obstinately in his errors,
but will not cure them.—
Notes on Virginia. Washington ed. viii, 398.
Ford ed., iii, 262.
(1782)
