Shareby Daniel Driesbach
The contributions of Thomas Jefferson and James Madison to religious liberty in Virginia and the new nation are exhaustively chronicled and rightly celebrated. George Mason (1725-1792), by contrast, has received neither the credit nor the attention given his more famous contemporaries for his unwavering devotion to the cause of religious rights. He was the principal draftsman of Article XVI of the Virginia Declaration of Rights, a seminal, post-colonial statement on the rights of conscience. In legislative chambers and behind the scenes, Mason was a deft, untiring strategist in the bitter contests to guarantee religious freedom and to end the legal favors enjoyed by the established church in Virginia. Few among the founding generation have had such an enduring impact on the rights of conscience and yet, received so little public recognition as George Mason. He was a towering figure in the struggle to craft a distinctively American doctrine of religious liberty and church-state relations for both the Commonwealth and the nation.Very little has been written that focuses on Mason’s pursuit of religious freedom in Virginia. This is an unfortunate omission in the existing scholarship. This article examines Mason’s most important contribution to the cause of religious liberty – his authorship of Article XVI of the Virginia Declaration of Rights.
Architect of the Virginia Declaration of Rights
George Mason was a Fairfax County delegate to the Virginia Convention, filling the seat vacated by George Washington who had been appointed commander-in-chief of a continental army. The Convention, which convened in Williamsburg on 6 May 1776, was arguably the most noteworthy political body ever assembled in the Commonwealth’s history. Composed largely of veterans of the old House of Burgesses, the Convention, on 15 May, passed a resolution instructing the Commonwealth’s delegates at the Continental Congress to press for a declaration of independence from England. The assembly also appointed a committee to prepare a state declaration of rights and plan of civil government. Among those appointed to the committee were Mason and the young, untested delegate from Orange County, James Madison, Jr.
George Mason, whose considerable talents were well-known in the Commonwealth, was the chief architect of the Declaration of Rights. Some time in late May, Mason prepared a list of ten proposals to which others were added by Thomas Ludwell Lee and the committee. The Virginia Declaration was printed in draft form, thoroughly debated, and amended before it was passed unanimously on 12 June 1776.
The genius of Mason’s Declaration, as Thomas Jefferson said of his own Declaration of Independence, was not in the “originality of principle of sentiment… [Rather,] it was intended to be an expression of the American mind” with its brilliant “harmonizing sentiments of the day.” William C. Rives characterized Mason’s Declaration as “a condensed, logical and luminous summary of the great principle of freedom inherited by us from our British ancestors; the extracted essence of the Magna Charta, the Petition of Rights, the Acts of the Long Parliament, and the doctrines of the Revolution of 1688 as expounded by Lock, – distilled and concentrated through the alembic of his own powerful and discriminating mind. There is nothing more remarkable in the political annals of America than this paper. It has stood the rude test of every vicissitude.”
Committee drafts of the Declaration were printed and circulated widely up and down the Atlantic seaboard in late May and June, and ita had an immediate and “profound impact on other Americans [in nascent states] whose task it was to create new governments.” “[B]y the time the last cannonade of the Revolution sounded,” Robert A. Rutland observed, “every state either had fashioned a separate bill of rights or had passed statutes with similar provisions. In a good many cases the work was done with scissors, pastepot, and a copy of the Virginia Declaration – a fact that did not escape Mason’s notice. It is, perhaps, not too much to acclaim the Declaration of Rights, which Mason boasted was the “first in American,” as “an intellectual guidepost of the American Revolution.” This seminal document secured for Mason an honored seat among the literati of the Revolution.
George Mason and the Rights of Conscience
Drawing on principles expressed in John Locke’s Letter Concerning Toleration, Mason included an article on religion in the “first draught” of the Virginia Declaration. His original proposal declared:
That as Religion, or the Duty which we owe to our divine and omnipotent Creator, and the Manner of discharging it, can be governed only by Reason and Conviction, not by Force or Violence; and therefore that all Men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience, unpunished and unrestrained by the Magistrate, unless, under Colour of Religion, any Man disturb the Peace, the Happiness, or Safety of Society, or of Individuals. And that it is the mutual Duty of all, to practice Christian forbearance, Love and Charity towards Each other.
The committee slightly amended Mason’s initial version before it was laid before the Convention on 27 May. It is this text that was printed and distributed widely in the Commonwealth and other colonies:
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, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love and charity towards each other.
James Madison and Religious Liberty
Although James Madison was interested in all portions of the Virginia Declaration, only the final article providing for religious toleration stirred him to action. In “his first important public act,” Madison objected to Mason’s use of the word “toleration” because it implied that religious exercise was a mere privilege that could be granted or revoked at the pleasure of the civil state, and was not assumed to be an equal right wholly exempt from the cognizance of the civil state and subject only to the dictates of a free conscience. Madison wanted to replace “toleration” with the concept of absolute equality in religious belief and exercise.
To be sure, Mason’s proposal went further than any previous declaration in force in Virginia. However, it did not go far enough to satisfy Madison. As early as 1774, Madison had come to think of religious toleration (the ultimate objective of most reformers of his day) as only the halfway point on the road to religious liberty. He eventually concluded that religious toleration – granted either by the civil state of by a religious authority – was inconsistent with freedom of conscience and was a woefully inadequate objective.
Historically speaking, religious toleration is to be contrasted with religious liberty. The former often assumes an established church and is always a revocable grant of the civil state rather than a natural, unalienable right. In Madison’s mind, the right of religious exercise was too important to be cast in the form of a mere privilege allowed by the ruling civil polity and enjoyed as a grant of governmental benevolence. Rather, he viewed religious liberty as a natural and unalienable right, possessed equally by all citizens, which must be beyond the reach of civil magistrates.
Madison’s proposed revisions to Article XVI punctuated his aversion to the concept of toleration with a natural rights argument that all mena are equally entitled to the free exercise of religion. It is not certain when Madison offered his amendments; however, they followed the Committee revision of 27 May. He first suggested the following alternative:
That Religion or duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it accord[in]g to the dictates of Conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges; nor subjected to any penalties or disabilities unless under &c.
Significantly, Madison retained the clause: “That Religion or the duty we owe our Creator, and the manner of discharging it…” The retention of this line suggests that both Mason and Madison construed “religion” as belief of a Creator and all of the duties arising from that belief. This notion is consistent with definitions of religion commonly used at the time, and it included deists but excluded atheists.
Most importantly, Madison replaced Mason’s clause, “all Men should enjoy the fullest Toleration in the Exercise of Religion” with the phrase, “all men are equally entitled to the full and free exercise of [religion] according to the dictates of Conscience.” Madison thus jettisoned the language of toleration and moved toward the concept of absolute religious liberty. Key to this restatement was the word “equally,” which was retained in subsequent drafts. This language meant that the unlearned Separate Baptists of central Piedmont had religious rights equal to those of the well-heeled Anglican aristocrats of Tidewater.
The clause stating “that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges” was the most radical feature of Madison’s revisions. It would have effectively terminated legal and financial support of ecclesiastical establishment in Virginia. (“[M]an or class of men” is a reference to a clergyman or religious sect.) Religious assessments would arguably have been proscribed. Furthermore, by striking out “force” and replacing it with “compulsion,” Madison was expanding the protection afforded religious citizens to include a prohibition on all pressure or interference by the civil state in matters of conscience. Madison’s revisions would have arguably deprived the Commonwealth of legal and financial power to support any church or clergy or to control the religious beliefs of citizens in any way.
Clearly, this revision was unacceptable to most delegates and, perhaps, to most Virginians. Unable to muster sufficient support for passage of this amendment, Madison drafted a second alternative providing for the free exercise of religion but carefully avoiding disestablishing the Anglican Church.
That religion, or 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, that men are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, Unless the preservation of equal liberty and the existence of the State are manifestly endangered; And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.
While retaining a regime of equality and liberty in religious exercise, Madison’s second revision abandoned the quixotic attempt to disestablish the church. He also dropped the word “compulsion,” “thus giving up the specific prohibition of religious control through civil processes.” Madison was successful, however, in cutting Mason’s “clause on disturbance of the peace down to the Lockeian principle of no interference with religion except to preserve civil society.” (Mason had given the magistrate latitude to restrain religious exercise that disturbed the tranquility not only of society but also of individuals.) The clause qualifying religious exercise that is deemed a danger to the civil state was totally eliminated in the final version.
Once again, delegates to the Virginia Convention declined to endorse Madison’s amendment as a whole. They were uncomfortable with any suggestion that Madison’s proposals might “sever the special relationship which bound Virginians to the church of their fathers.” The version finally adopted, however, included his clause declaring that “all men are equally entitled to the free exercise of religion.”
Madison’s amendments were apparently offered without sharp objection from Mason. A half century later, Madison casually reported to Mason’s grandson that the term “toleration” “had been admitted into the original draft of the Declaration of Rights but on a suggestion from myself was readily exchanged for the phraseology excluding it. This episode, importantly, brought Madison to the attention of his fellow delegates and distinguished him, along with Mason and Jefferson, as an able spokesman for the cause of religious liberty.
The First Legal Statement of Religious Liberty
In its final form, Article XVI of the Virginia Declaration of Rights provided:
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.
The final version, observed L. John Van Til, lined “Creator,” “religion,” and “conscience.” “Religion is the way that a man relates to his Creator, but this relationship can be cared for only through conscience. Conscience employs reason and conviction, not force and violence; hence, conscience as the only way to discharge the duties of man toward his Creator must be at liberty. Significantly, the [article] adds that it is necessary therefore, to practice ‘Christian forbearance, love,, and charity towards each other.’ This language rests on two important assumptions: first, that the rights of conscience envisioned by the Virginia Convention were to be exercised in a theistic context, and, second, that it involves not only a relationship between one man and his God, but also the relationship of each man to his neighbor.
Article XVI was thus embedded in the organic law of the Commonwealth. Its impact on law and policy was immediate, reported Virginia historian Hamilton James Eckenrode. “Prosecution for religious sects and denominations “were placed on the same civil footing…Virginia,” Eckenrode boasted, “was ahead of the world, making the first legal statement of the principle of religious liberty.”
Mason is rightly revered as the principal author of the Virginia Declaration of Rights, and it is his version of the article on religion, nor Madison’s, that was widely circulated and influential in the former colonies. (Madison, it is recalled, did not offer his amendments until after the committee draft of the Virginia Declaration had been published and broadcast throughout the colonies and beyond.) Mason wrote the script that, with Madison’s felicitous revisions, forever changed the way Americans regard the rights on conscience.
Daniel L. Dreisbach, D.Phil (Oxford University) and J.D. (University of Virginia), is an associate professor of justice, law, and society at American University in Washington, D.C. He is the author of Religion and Politics in the Early Republic (University Press of Kentucky, 1996). This article is an excerpt from the Liberty Lecture he delivered at Gunston Hall on 14 October 1997. An expanded and updated version of this lecture was published in The Virginia Magazine of History and Biography, vol. 108, no. 1 (2000): 5-44.
This article was originally published in the Gunston Gazette (Gunston Hall Plantation Membership Newsletter), vol. 2, no. 2 (1997): I – VIII.
