USA > Virginia > The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body, Vol. II > Part 10
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90 I have no means at hand of ascertaining the number of the persons in full communion with the various sects in Virginia, but my general recollection of the numbers would give to the Baptist Church (including the Campbellite and other branches) 100,000; the Methodist Episcopal and the Methodist Protestant, together, 100,000 ; the Presbyterian (old and new school), about 40,000; the Protestant Episcopal, about 8,oco; the Catholics and Jews, united, not more than 5,000. It is thus evident that if the Methodists and Baptists were to sink their distinctive tenets, and unite on a common platform as a single sect, they could call a con- vention and create a church establishment whenever they pleased. I am aware that the Baptist and Methodist Churches include a greater proportion of our slaves than the Presbyterian and the Episcopal, but any reasonable deduction on this 'account would still make them all- powerful as a united body. Hence, our protection from a religious establishment is founded more in the multiplicity of sects than in the law or the Constitution.
91 Among those not members of the present Convention who voted in the affirmative were Spencer Roane, Cropper, N. Cabell, Edmunds (of Brunswick), Wray, Jones (of King George), Richard Bland Lee,
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were James Madison, Alexander White, Zachariah Johnston, W. C. Nicholas, Trigg, Strother, and Clendenin. Committees were appointed to prepare and report bills for each of the two resolutions; those composing the committee to report a billl incorporating the Protestant Episcopal Church were Carter Henry Harrison, Patrick Henry, Thomas Smith, William An- derson, and Henry Tazewell. On the 11th of December Mr. Harrison reported the bill to incorporate the Episcopal Church, which was read a first time and ordered to be read a second time. It was before the Committee of the Whole on the 18th and the 20th, and on the 22d it passed the House by a vote of forty-seven to thirty eight-ascertained by ayes and noes; James Madison, 92 John Marshall, William Grayson, Benjamin Harrison (of Berkeley), Joseph Jones (of Dinwiddie), Miles King, Joseph Jones (of King George), Thornton, Corbin, Willis Riddick, Eyre, Ronald, Ruffin, Edmunds (of Sussex), and Briggs voting in the affirmative, and W. C. Nicholas, Zachariah Johnston, Archibald Stuart, John Trigg, Strother, Clendenin, Humphreys, and Isaac Vanmeter in the negative. 93
The incorporation of the clergy of the Protestant Episcopal Church was an important incident in the religious controversy which began with the first Assembly in October, 1776, and was terminated, in its legislative aspect, by the passage of the act of 1802, which ordered a general sale of the glebe lands. It tended to infuse a bitterness in the subsequent discussions not before known, and was upheld by one party with all its zeal, and
and Richard Lee, and in the negative were John Taylor (of Caroline), Nathaniel Wilkerson, John Breckenridge, and William Russell. Many members were absent.
92 Madison had recently voted against the resolution which offered the privileges of incorporation to all sects. The reason of his present vote may be inferred presently.
93 Among those not members of the present Convention who voted for the bill were Cropper, N. Cabell, Edward Carrington, C. H. Harri- son, Richard Lee, and Henry Tazewell, and those who voted against it were Spencer Roane, John Nicholas, Jacob Morton, Henderson, R. B. Lee, and Michael Bowyer. John Taylor (of Caroline) was absent. Alexander White had asked and obtained leave of absence on the 20th of November, but was present on the 29th, and voted on that day, as will be seen hereafter.
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denounced by all not included in its scope with unusual severity. At this day we may safely regard the question on its own merits, and form a correct opinion of the conduct of our fathers on a trying occasion.
The first question that arises is, whether any act of incorpora- tion ought to be passed by the General Assembly; the second, whether, if an act of incorporation ought to pass, ought an act incorporating a religions society receive the sanction of that body ; and the third, whether the special provisions of the act in question were just and proper. There have always been a few of our earlier, as well as later, politicians who were opposed to the granting of acts of incorporation for any purpose whatever. As late as the Convention of 1829 Mr. Giles presented a propo- sition on the subject, and intended to have put forth all his strength in demonstrating their dangerous effects; but the measure was not sanctioned by that body. In the opinion of such politicians no association of citizens for any public purpose should be allowed to sue or be sued, or to have a common seal, but must be compelled to conduct their affairs through the cum- brous and perilous machinery of trustees. But no such doc- trine was advanced in any petition from the people, or was coun- tenanced by the Assembly. On the contrary, acts of incorpora- tion were as freely sought and as freely granted for any useful enterprise of a public nature, conducted by the joint capital of several individuals, then as now. Perhaps, from obvious reasons, grants of exclusive privileges were then made more readily than at present. During the present session the exclusive privilege of running stage-coaches between Williamsburg and Hampton had been granted to John Hoomes for a term of years, and the exclusive right of constructing and managing certain boats for the term of ten years was conferred upon James Rumsey.95 Sc
94 He was prevented by indisposition from a constant attendance during the session, and happened to be absent when his proposition was called up and rejected. But the body was so much opposed to the proposition that it rather ungraciously refused to reconsider their vote on the subject with a view of allowing Mr. Giles to present his views at length.
. 95 House Journal, November 15, 1784. The State, however, could at any time take possession of his boats and determine the charter by paying him ten thousand pounds, Virginia currency, in gold or silver.
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far, then, as the opinions of the people and of the Assembly were concerned, there was no serious ground for hostility to the bill arising from theoretical views of the nature and effect of incor- porations.
The second question is, whether there was anything in the character of religious associations which should exclude them from the privileges which were freely accorded to all others. Without entering into the minute discussion of the question whether the proprietors of a church should not have the privi- lege of holding their property in the same manner in which a college building or a manufacturing mill is held, and " be relieved from the precarious fidelity of trustees," 96 it is sufficient to say that, although there had been a period of several months allowed by the postponement of the bill for the ascertainment of public opinion on the subject, none of the memorials or petitions from societies or individuals recorded in the Journals objected to the expediency of incorporating religious associations.
It is true that the Presbytery of Hanover of October, 1784, objected to the incorporation of the clergy as a class distinct from the people; but it is obvious that this objection extended to the form of incorporation only, and not to the expediency of incorporating the Church as an association. And this view is sustained by the explicit declaration of the same Presbytery, in its memorial of the 19th of May, 1785-drawn by the skilful and unconquerable Graham after the passage of the Episcopal Church bill-that "we (the Presbytery of Hanover) do not desire to oppose the incorporation of that Church for the better man- agement of its temporalities." 97 There was then not a single memorial before the Assembly, which specifically objected to the incorporation of a religious society, not excepting the Rock- bridge petition, which objected to assessments only,9% and which,
6 I quote these words from the memorial of the Presbytery of Han- over of May 19, 1784, in Foote, Vol. I, 334.
97 Foote, Vol. I. 343. The italics are in the printed memorial.
98 As the Rockbridge petition was evidently drawn by the same hand that drafted the Hanover memorial of 1785, which favored acts of incorporation, had it spoken at all, it would have been in favor of incorporating religious associations. It may be observed that the objection of Hanover Presbytery in their memorial of October, 1784,
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had it been opposed to incorporations, would have been out- weighed by the petition from Lunenburg, Mecklenburg, and Amelia, either of which counties equalled Rockbridge in intelli- gence, and exceeded it in population and resources. When we regard the time that elapsed between the committal of the Epis- copal Church bill on the 25th of June, and its third reading on the 22d of December following, the unparalleled excitement pro- duced by the religious disputes in the interval, and the absence of all objections from the people to the policy of incorporating religious associations, it is hard to see on what ground the Assembly could refuse to grant a mere act of incorporation, which was freely offered to all religious sects by a formal resolu- tion, to any one religious body which might apply for the same. So far, then, the conduct of the Assembly was not only free from serious objection, but was in the highest degree liberal, and in perfect consonance with the express and implied wishes of the people.
The third, and most popular, objection to the bill was the nature of its provisions. The bill declared that every minister of the Protestant Episcopal Church, now holding a parish in this Commonwealth, either by appointment from the vestry or induction from a governor, and all the vestrymen in the differ- ent parishes now instituted, or which may hereafter be instituted, within this Commonwealth-that is to say, the minister and vestry of each parish, respectively, or, in case of a vacancy, the vestry of each parish, and their successors forever-are hereby made a body corporate and politic, by the name of "The Minister and Vestry of the Protestant Episcopal Church," in the parish in which they respectively reside. Each vestry could hold property not exceeding in income eight hundred pounds per annum, could sue and be sued, and perform all necessary acts of a vestry or corporation, and hold the glebe lands and the churches. A Convention of the Church was to be called, and the government of the Church to be vested in the Convention, both as to its forms and doctrines. Such were the principal enactments of the bill; and so far as the forms are concerned, as
against the bill as incorporating the clergy as a class, was removed by including the vestry, as well as the minister, in the name of the corpo- ration. .
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the same privilege of prescribing forms for themselves was con- ceded to all churches which would apply for a charter, there was no favoritism in the provisions. But the Episcopal Church was entitled by this bill to hold all the churches and glebes which it was entitled to hold under the act of the October session of 1776. And the question arises here whether the churches and glebes held by the Episcopal Church belonged to that Church, as such, or to the people.
Looking at this question with the convictions and feelings of this day, and regarding it as an original question presenting itself for the first time, few would hesitate to say that the people who paid for the building of the churches, and for the purchase of the glebes, were their rightful proprietors. The Episcopal Church was originally chosen as an efficient instrumentality in conveying moral and religious instruction to the people, and was as essentially an integral part of the Government as a judiciary constructed for the dispensation of justice, or a treasury depart- ment for the receipt and disbursement of the public revenue; and it was fair to suppose that the clergy and vestry had no more right to the houses in which they preached and wor- shipped than a judge possesses to the hall in which he performs his duty, or the treasurer to the room in the capitol in which he keeps his office. The right of property in the churches and glebes should seem to be in the Commonwealth, and it should appear that to confer upon a single sect the property belonging to all the people would be manifestly unwise and unjust, and, as the Assembly did not propose to confer an equal -amount of property upon all the sects, it would be in violation of the fourth article of the Declaration of Rights, which enacts that no man, or set of men, are entitled to exclusive privileges from the com - munity. Such is the view which persons of the present day are apt to take of the subject when presented as an original question.
But for more than eight years it had ceased to be an original question. There cannot be a greater mistake than that into which some theoretical writers have fallen, which supposes that when our fathers sundered the tie that bound the Colony to the King we were resolved into a state of nature. The only change effected in our condition by the deposition of the King was a change of a foreign executive for one of our own making. The
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body of our jurisprudence remained just as it had been before. Property in possession of its lawful owners was deemed as sacred as it ever was, and was so declared to be in the Declaration of Rights, and was held by the same tenures. If any property may appear to have been invaded by the Declaration of Rights it was property in slaves; yet, though there were few or no slaves at that time in that vast territory beyond the Blue Ridge, none deemed its tenure less secure after the adoption of the Declaration of Rights than before. All the provisions of that artificial polity, the growth of a thousand years, and the emblem of a high civilization, which were binding before the Declaration of Rights was adopted, were equally sacred after its adoption. Hence, when, after the Declaration of Independence, the rights of individuals or associations were concerned, the question was not what the law of nature said upon the subject, but what were the laws of the land.
There were grave objections to the division of the church property at this time (1784) in the mode just alluded to, which had great weight with the eminent jurists who were to vote upon the bill.99 Indeed, the question of the disposition of the churches and glebes was far from being an original question. Setting aside all right and title held by the Episcopal Church to its houses and lands prior to 1776, the members of the House knew that the Convention of that year which framed the Con- stitution not only did not repeal the corporate character of the Church, but sought to make it more efficient by amending its liturgy. At the close of the session of the Convention that declared independence, the Episcopal Church was as much an establishment as she had been from the passage of the act of the
99 The House of Delegates then held as able men as ever appeared in our councils. Among them were James Madison, who was always placed at the head of the Committee on the Judiciary ; Henry Taze- well, who was soon after the present date elected a judge of the General Court and then a judge of the Court of Appeals; John Mar- shall, afterwards Chief Justice of the United States ; William Grayson, one of the ablest lawyers as well as statesmen of his age; Jones of King George, and Jones of Dinwiddie, and other distinguished men, who voted for the bill ; while the only able lawyer who opposed it was - Spencer Roane, then a young man, and Archibald Stuart, then also very young. John Taylor (of Caroline) was absent.
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twenty-second year of George the Second. Great changes had been made in her authority and revenues at the October session of 1776; but, shorn as she was, she was still an establishment; and the act of that session distinctly reserved to her her churches and her glebes. How far it was just and proper to confirm the Church in her title to property under existing laws we shall not discuss here; but it was a grave question with eminent lawyers whether the act of 1776 did not settle the question of property forever. Supposing the Church had not a perfect title, the right of the Assembly to make donations was unrestricted by the Constitution; and, although a donation or confirmation of title may appear to trench upon the 'Declaration of Rights, that instrument was then believed by prominent members of the Convention that framed it to be no part of the Constitution; nor had any decision settling its relation to the Constitution then been made. 100
In the eye of the law the Assembly was competent to bestow public property upon literary or religious associations according to its discretion ; and the act of 1776 confirming the right of the Church to the property held in possession, was, in its nature and extent, insignificant when compared with the act of the same session converting all the lands in the Commonwealth held by tenants in tail into fee simple. The members of the Assem- bly well knew that if they made any new enactment touching the property of the Church, the subject would immediately be brought before the courts, and what would be the decision of the court of the last resort was hardly a matter of doubt. Indeed, nine years later, when the Assembly had passed the act of 1802 ordering the glebes to be sold, that court would, but for the sud- den death of its chief, have pronounced that act unconstitutional, and restored the glebes to the Episcopal Church. 101 With these facts before them, the members of the House, in a spirit of pru- dence and peace, made no new provision in the present bill
100 Edmund Randolph denied its authority as a part of the Constitu- tion as late as the year 1788, and that denial was made in the presence of the present Convention.
101 The Court of Appeals had heard the argument in the case, and Pendleton had prepared an opinion in favor of the Church, which he was to have delivered the day on which he died.
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respecting the property of the Church, but simply remitted it to the rights and titles which it enjoyed under the act of 1776-an act made by the identical men who composed the Convention of 1776, and were sitting as the House of Delegates under the Constitution which they had formed. That act was either con- stitutional, or it was not. If it was constitutional, then the present bill did not confer any right or title to property which the Church did not already possess under the sanction of law; and if it was unconstitutional, then it was the province of the judiciary to decide the question, and the provisions of the present bill in respect to property were of no avail. It will thus appear, from a full view of the case, that the majority which carried the bill incorporating the Protestant Episcopal Church acted with that wise foresight that became a deliberate body, and in the full spirit of religious freedom.
In a historical as well as in a moral view, it is much to be regretted that the religious controversy, which was soon to wage more fiercely than ever, had not ended in our legislative halls with the passage of this bill, or if it was destined to continue, had not been transferred to the cooler arena of the courts. Before the close of the session religious freedom was established as substantially as it was in the following year; and the speedy and successful adjustment of this vexed question might have saved from decay many of those venerable structures in which our fathers worshipped, and which ultimately became the prey of the beasts of the field and the fowls of the air, and the still more brutal spoliation of man; and might have rescued from desecration those noble monuments which the piety of the people had reared to protect and honor the abodes of the dead. It might have prevented the almost entire extinction of an illus- trious branch of the Church of Christ, which had achieved great and glorious things in the common cause, and the literature of which is still the pride of the Anglo-Saxon race ; 102 and it might
10> The memorial of the Presbytery of Hanover estimated the value of church property at "several hundred thousand pounds "; but the sales contributed the merest pittance to the public funds. The down- fall of the Episcopal Church was owing partly to the prejudice arising from its former connection with the British Crown, and the hostility which an establishment, as such, must necessarily excite in any country in proportion that it is free; partly from the large emigration from 8
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have filled the pulpit with learned and faithful ministers through- out a populous region of our country at a time when none other existed to take their places, and might thus in some measure have tended to avert that torrent of infidelity which was soon to sweep over the land and scatter destruction in its train.
We now advert to the action of the committee appointed to bring in a bill providing for an assessment in pursuance of the resolution adopted by the House on the 11th of November. Patrick Henry had been placed at its head, but he had in the mean time been elected Governor, and Francis Corbin, on the 2d of December, reported a bill "establishing a provision for teachers of the Christian religion," which was immediately read a first time and ordered to be read a second time. On Friday, the 3d, it was read a second time and referred to a com- mittee of the whole House for the following Thursday. Finally, on the 24th the engrossed bill came up on its passage, and a motion was made that its further consideration be postponed until the fourth Thursday in November next; James Madison, Wilson C. Nicholas, Zachariah Johnston, Archibald Stuart, John
Eastern Virginia to the upper and western counties and to Kentucky, but mainly from the irreligious demeanor of its clergy, both before and after the Revolution. There was no hostility to the Episcopal Church as a Church of Christ. If any man felt that hostility, Samuel Davies might have been expected to feel it. That illustrious man was the father of the Presbyterian Church in Virginia, and was as fearless in the expression of his opinions as he was able in defending them. But he candidly declares that, " had the doctrines of the Gospel been solemnly and faithfully preached, I am persuaded that there would have been few dissenters in these parts of Virginia, for their first objec- tions were not against the rites and ceremonies of that Church, much less against her excellent articles, but against the general strain of the doctrines delivered from the pulpit; so that at first they were not properly dissenters from the original Constitution of the Church of England, but the most strict adherents to it, and only dissented from those who had forsaken it." One thing our fathers owed to the old clergy of the Church, who, though they were sometimes tempted to hunt foxes, fight duels, and to drink hard, were capital scholars, and and taught Latin and Greek and mathematics quite as thoroughly as they have been taught since. It is to this source mainly that we are indebted for that admirable literary preparation which made the State papers of our public men worthy of the cause in which they were engaged.
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Trigg, Strother, Clendenin, Humphreys, Isaac Vanmeter, Ronald, Edmunds (of Sussex), Briggs, and Matthews voting in the affirmative, and John Marshall, Benjamin Harrison (of Berkeley), Watkins, Joseph Jones (of Dinwiddie), Miles King, Thomas Smith, Thornton, Corbin, Wills Riddick, Littleton Eyre, Edmund Ruffin, Thomas Walke, and John Allen voting in the negative. The motion prevailed by a vote of forty-five to thirty -eight. 103
The postponement was expressly designed to submit the question of assessment to the people. Accordingly, the House ordered " that the bill with the ayes and noes on the question of postponement be published in handbills, and twelve copies thereof to be delivered to each member of the General Assem- bly, to be distributed in their respective counties; and the peo- ple thereof be requested to signify their opinion respecting the adoption of such a bill to the next session of Assembly." We have already shown that the question of assessments had no con- nection with the notion of an establishment, but arose from a conviction that some certain means of support might be afforded to religious teachers of all sects, who might thus be induced to settle in the Commonwealth. The preamble of the bill declares "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 learned teachers who may be thereby enabled to devote their time and attention to the duty of instructing such citizens as from their circumstances and want of education cannot otherwise attain such knowledge; and it is judged that such provision may be made by the Legislature with- out counteracting the liberal principle heretofore adopted and intended to be preserved, by abolishing all distinctions of pre- eminence amongst the different societies or communities of
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