1 Eckenrode, H. J. points this out in his “Separation of church and state in Virginia, a study in the development of the Revolution.” in Annual Reports of Officers and Institutions of the Commonwealth of Virginia, 1908-1909Google Scholar, Virginia, Richmond, 1909, Report of the State Librarian, p. 91Google Scholar. Cf. Thorning, J. F., , S. J., Religious Liberty in Transition … New England, Washington, D. C., 1931, Introduction, pp. 2fGoogle Scholar. Proffessor F. W. Buckler has offered a suggestion which might be inserted at this point to the effect that since the king was patron of the Colonial Establishment, after American independence was secured the lay trustee became the residuary legatee of the crown's patronage, and so of the royal supremacy and establishment of the church. It is significant that trusteeship exists under state rights and as Alexander Hamilton pointed out, on the recognition of independence, sovereignty went a-begging and the states assumed it.

2 The attack of Richard Bland and Patrick Henry on the king's exercise of his veto against the “Twopenny Act” of 1758 brought to the fore the political significance of the “Parson's Case.” The appeal of the clergy to the royal prerogative in this conflict with the civil power of the colony involved the issue of the extent of British authority in colonial affairs. “The conflict decided the long-debated question whether the control of the establishment lay finally with assembly or the British officials.” Eckenrode, op. cit., pp. 20 ff: vide also his The Revolution in Virginia, New York, 1916, pp. 9–15Google Scholar. On the independence of the house of burgesses and of the vestries in the matter of toleration vide Mcllwaine, Henry R., “The struggle of Protestant dissenters for religious toleration in Virginia,” in Johns Hoploins University Studies in Historical and Political Science, Baltimore, 1894, 12th series, pp. 179, 192, 215, 222, et passim.Google Scholar

3 Vide William T. Thom, “The struggle for religious freedom in Virginia: the Baptists,” loc. cit., 1900, 13th series pp. 484–571, and map showing spread of the Baptists through the colony between 1770–1776; also Sweet, William Warren, Religion on the American Frontier—the Baptists, 1783–1830, New York, 1931, pp. 9–15Google Scholar. The movement for a wider toleration began before the Revolution. In 1769 the house of burgesses instructed the Committee on Religion “to prepare and bring in a Bill for exempting his majesty's Protestant Dissenter from the penalities of certain Laws.” No bill was brought forward though the same instructions were given the committee at the next session. With the intensifying of the democratic feeling during the Revolution, not toleration but religious liberty became the demand. Eckenrode, “Separation of Church and State in Virginia,” p. 39.

4 Jefferson gives 1779 as the date when disestablishment was accomplished. Eckenrode considers that disestablishment was practically effected when the temporary suspension of assessments and the exemption of dissenters from the paying of tithes were enacted in 1776, but his contention that “Jefferson's act of 1779 settled nothing” is questionable. The series of suspensions of assessments in 1776, 1777, 1778 were temporary war measures. The net of 1779 perpetuated these and thus settled the issue of the support of an exclusive establishment. When the question of assessments again came forward in 1784 it was for the support of religion in general. As a matter of fact, disestablishment was not fully accomplished until the control of the Episcopal Church by the legislature, as well as state support, was removed and given to the clergy. Meanwhile, without state support yet under state control the establishment lingered on. “It would have been better for the Anglican Church if separation of church and state had been completed in 1776. It would have been free to organize itself in accordance with new conditions.” Eckenrode, Ibid., p. 64. It may be added that had Episcopalianism been free to organize itself early in the Revolution, the Methodist schism, threatened in 1778–1780, actualized in 1784, might have been avoided.

5 The fact that a Bill for Establishing Religious Freedom was deemed necessary in 1786, ten years after Article XVI of the Virginia Bill of Rights had placed the principle of religious liberty in the constitution of Virginia, is significant. The bearing of Article XVI on the relation of church and state was far from clear, and, as the purpose underlying the proposal of a general assessment shows, many believed that it did not prejudice the case for a comprehensive union of the two.

6 This statement has been questioned on the ground that chief credit belongs to the Baptists. I speak here, of course, concerning individual political leadership. The Baptists as a body of dissent in Virginia created the problem, raised the demand for religious liberty and were its most consistent and effective advocates. Among them might be named John Lelasid as an outstanding leader. Vide Sprague, Wm.B., Annals of the American Pulpit… New York, 1860, vol. VI pp. 175–176, 184Google Scholar; James, Charles F., Documentary History of the Struggle for Religious Liberty in Virginia, Lynehburg, Va., 1900, pp. 32, 38, 50, 115, 122et passim for Baptist petitionsGoogle Scholar; pp. 86, 146, 171, for the work of John Leland. For Jefferson's replies to letters from Baptists expressing their appreciation and confidence in his leadership in the struggle for religious liberty, vide pp. 174–176. The work, however, of James Madison, an Episcopalian who knew far more about theology than did Jefferson, must not be overlooked. His effective opposition to Patrick Henry who came forward as the champion of a general assessment, and his Memorial and Remonstrance were decisive in turning popular opinion against the proposal. The principle of assessments for religion, he pointed out, meant the interference of the law in religion which always resulted in evil. If Christianity could be established, then so could a single sect. Religion should be entirely free of the state. Vide, The Writings of James Madison, comprising his public papers and private correspondence… edited by Hunt, Gaillard, New York, 1900-1910, Vols. I, pp. 208, 213, II pp. 58, 132, 183, 212, et passimGoogle Scholar; Eckenrode, op. cit., 83, 99, 104, 129 et passim.

7 The Works of Thomas Jefferson, collected and edited by Ford, Paul Leicester, New York, 1904, Vol. II, p. 438, note 1.Google Scholar

8 His practical temperament, plus an early Calvinistie training, plus the eighteenth century commonsense philosophy are the ingredients of his view. The last element seems to have made its first impact through the reading of Bolingbroke; vide Chinard, Gilbert, Thomas Jefferson—the Apostle of Americanism, Boston, 1929, pp. 21fGoogle Scholar. It should be noted, however, that Jefferson rejects Helvetius' utilitarian basis for morals: Jefferson posited a moral instinct. Ibid., pp. 523–525.

9 Vide “The Bill for Establishing Religious Freedom” in the Ford edition, Vol. II, pp. 438 ff.

10 The preceding clause reads, “that to suffer the civil magistrate to intrude bis powers into the field of opinion and to restrain the profession or propagation of principles on the supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty.” Ibid., p. 440. The point is well illustrated hi the distinction which the law draws between the practice of polygamy and the Mormon doctrine of “celestial” marriages, forbidding the former but not interfering with the latter. A Mormon may by “celestial” marriages provide for a harem in eternity, but may not thereby have more than one terrestrial marriage at any one time. Vide Zollmann, Carl, “American Civil Church law” in Columbia University Studies in History, Economics and Public Law, New York, 1917, Vol LXXVII, No. 181, p. 18.Google Scholar

11 Schaff, Philip, “Church and state in the United States,” in American Historical Association Papers, New York, 1889, Series II, No. 4, pp. 21–22, 45 ffGoogle Scholar. This theory was as much at odds with New England Congregational ehurchcraft as with the Anglican polity of Virginia. Roger Williams, to whom “it was revealed that civil government had no concern to enforce ‘the laws of the first table,’” did not find Massachusetts congenial. Bacon, Leonard W., A History of American Christianity in American Church History Series, New York, 1901, Vol. XIII, p. 101Google Scholar. The New England form of Respublica Christiana, while eventually more tolerant than other church establishments, was the offspring of an English Puritanism which had demanded doctrinal uniformity. Williston Walker, A History of the Congregational Churches in the United States, loc. cit., Vol. III, p. 86.

12 The return to the territorial state-church resulted in an international toleration, but the formula cujus regio, ejus religio subjected religion to political necessity. Bossuet maintained that Catholics and Protestants agreed on the right of the civil power to persecute. Jordan, W. K., The Development of Religiaus Toleration in England, Cambridge, 1932, pp. 19, 35, 40, et passimGoogle Scholar. Cf. Figgis, John N., Studies of Political Thought from Gerson to Grotius, 1414–1625, Cambridge, 1923, pp. 96, 100–102, 115.Google Scholar

13 On toleration in Virginia before the Revolution, vide Mcllwaine, op. cit., pp. 175–235. “The extreme provisions of the law [against dissenters] soon became inoperative,” he says (p. 234): but Charles P. James, op. cit., pp. 26 ff, gives documents illustrating the persecution of the Baptists.

14 An unevangelical type of religion, combined with the hostility toward Jefferson on the part of the defenders of the establishment, and the identification of political liberalism with French atheism, especially in reactionary Europe after the French Revolution—these three factors conspired to gain for him an undeserved reputation as an atheist. Vide Chinard, Thomas Jefferson, pp. 519–520.

15 His independence of any sect should not be interpreted as unfriendliness toward the church and religion. Vide ibid., pp. 103f., for evidence on his financial support of the church. Cf. Randall, Henry S., The Life of Thomas Jefferson, Philadelphia, 1865, Vol. III, pp. 553 ff.Google Scholar

16 To the Danbury Baptists, in the Washington edition of his Writings, Vol. VIII, p. 113; cf. note in the Ford edition, Vol. VIII, p. 129 on this letter.

17 E. g., Foster, H. P., “Political Theories of the Calvinists before the Exodus to America,” in American Historical Review, New York, 1915-1916, Vol. XXI, pp. 481 ffGoogle Scholar; and his “International Calvinism through Locke and the Revolution of 1688,” loc. cit., 1926–1927, Vol. XXXII, pp. 475 ff.

18 Becker, Carl, The Declaration of Independence—a Study in the History of Political Ideas, New York, 1922Google Scholar, especially chap. ii, “Historical antecedents of the Declaration of the natural rights philosophy,” pp. 24–79.

19 Merriam, M. C. E. Jr, “The political theory of Jefferson,” in Political Science Quarterly, New York, 1902, Vol. XVII, pp. 24 ffGoogle Scholar. Schaff, D. S., “The BellarmineJefferson Legend and the Declaration of Independence,” in American Society of Church History Papers, New York, 1928, 2nd series, Vol. VIII, 239–276Google Scholar. The legend dates from an article by Hunt, Gaillard in the Catholic Historical Review, October, 1917, pp. 276–289.Google Scholar

20 Chinard, , Thomas Jefferson, p. 101.Google Scholar

21 Vide Tytler, Alexander Fraser of Woodlouselee, , Memoirs of the Life and Times of the Honorable Henry Homes Kames …, Edinburgh, 1814, 3 vols. Kames (1696-1782)Google Scholar considerably influenced American political thought through his Historical Law Tracts, first publisheI in 1758. Cf. Ibid., Vol. I, p. 336, Vol. II, p. 14, for Franklin's correspondence with Kames.

22 “The Commonplace Booh of Thomas Jefferson, a Repertory of his Ideas on Government with an Introduction and Notes” by Chinned, Gilbert in Johns Hopkins Studies in Romance Literatures and Languages, Baltimore, 1926, extra vol. IIGoogle Scholar, and The Literary Bible of Thomas Jefferson—his Commonplace Book of Philosophers and Poets, with an Introduction by Gilbert Chinard, Baltimore, 1928Google Scholar. Chinard in his introduction to the Commonplace Book says that it “may well be considered as the most important document available for the study of the historical and political background of Jefferson at the time he wrote the Declaration of Independence. It does not represent Jefferson's complete range of reading, and it will be noticed that purely literary and philosophical matters receive little attention in it. The extracts he made from Greek, Latin, English and French poets and from ancient and modern philosophers he set down in a smaller book (the Literary Bible).” Introduction, pp. 52–53. For Chinard's summary of his conclusions on the question of the date of this document vide pp. 13–14. Concerning the Literary Bible he writes, “If, as we believe and hope to show, this much thumbed little book was compiled by Jefferson during his student days, it could rightly be called: ‘Jefferson self-revealed.’ For it contains the maxims and principles which so impressed his plastic mind, that by them be was to govern the rest of his life.” Literary Bible, p. 3. Important documents are also printed in Ford's edition of Jefferson's, Writings; vide especially Vol II, pp. 16–35Google Scholar for his argument in an ecclesiastical case.

23 The financial burden of the war prompted the exemptions and suspensions of tithes. The poverty of the state after the war contributed to the defeat of the measure for a general assessment in 1785. Vide Grigaby, Hugh B., “The history of the Virginia Federal Convention of 1788, with some account of the eminent Virginians of that Era who were Members of the Body,” in the Virginia Historical Society Collections, Richmond, Virginia, 1891, new series, Vol. X, pp. 124–125.Google Scholar

24 Chinard, G., Thomas Jefferson, pp. 14–15Google Scholar. Trevelyan's account of Henry's speech is given in Henry, W. W., Patrick Henry, Life, Correspondence and Speeches, New York, 1891, Vol. I, pp. 39–42.Google Scholar

25 Jefferson's, Memo in Memoir, Correspondence, and Miscellanies from the Papers of Thomas Jefferson, edited by Randolph, T. J., Boston, 1830, Vol. I, p. 32.Google Scholar

26 This argument is given in Ford's edition, Vol. II, pp. 16–35, reprinted from Jefferson's Reports of Cases in the General Court. The question at issue wa the competency of the General Court to act as a court of visitation. Jefferson argued that it possessed the authority and the court so adjudged the matter.

27 Ibid., pp. 17–18.

28 Commonplace Book, No. 768, p. 244Google Scholar, notes taken from Sullivan, Francis Stoughton, An Historical Treatise on the Feudal Laws and the Constitution and Laws of England … in a course of lectures read in the University of Dublin, London, 1772.Google Scholar

29 Ibid., No. 769, p. 245.

30 Ibid., pp. 245–246.

31 Concerning Sullivan, Jefferson wrote: “he shows himself to have imbibed principles unfriendly to the rights of mankind and favorable to the divine rights of the king and clergy.” Ibid., No. 767 p. 244. Jefferson used the information which Hume gave, but detested his principles: vide ibid., pp. 12–13.

38 Ibid., p. 385.

39 Ibid., p. 384.

40 His note reads: “The Presbyterian spirit is known to be so congenial with friendly liberty, that the patriots after the restoration finding that the humour of people was running too strongly to exalt the prerogative of the crown, promoted the dissenting interests as a check and balance and thus was produced the Toleration Act.” Ibid.

41 To Thomas Cooper, November 2, 1822, given in Randolph, op. cit., Vol. IV, p. 358. Cooper had written concerning fanaticism in Pennsylvania. Jefferson replying, laid the blame upon the Presbyterians.

42 Cited in Commonplace Book, No. 797, p. 291Google Scholar. No. 797 continues: “La loix de La religion ont plus pour objet La bonté de l'homme qui les observe, les loix civiles, la bonté morale des homines en général. Ainsi les íđees qui naissent imméđiatement đe la religion. ne đoivent pas toujours servir đe principe aux lois civiles; parce que cetles-ci en out une autre, qui est le bien général đe La société…” Taken from L'Esprit đes Lois, L. 26, chap. 9.

43 Commonplace Book, Nos. 872, 873, 879, pp. 349–363Google Scholarpassim: No. 872 is a note on the observance of the Sabbath in Common law. No. 869, pp. 346–349, on the moaning and origin of the Common law should also be noted. Jefferson's letter to Cooper is given in the Ford edition, Vol. I, pp. 453–464, and also in the Memorial edition, Vol. XIV, pp. 85 ff. He says of these notes: “In my letter of January 16, I promised you a sample from my common place book, of the pious disposition of the English judges, to connive at the frauds of the clergy, a disposition which has often rendered them faithful allies in practice…. I now enclose you the extract from these entries which I promised. They were written at a time of life when I was bold in the pursuit of knowledge, never fearing to follow truth and reason to whatever results they led, and boarding every authority which stood in their way. This must be an apology, if you find the conclusion bolder than historical facts and principles will warrant.” Ford edition, Vol. I, pp. 453–454, footnote. In a later letter to Everett (1824) Jefferson says that he took up this subject of the origin and history of the Common law, “while still a practitioner of the law.” Chinard concludes from this that it was probably undertaken at “a period when he was still interested in the study of the law. This would particularly fit the time when he was working on the revision of the statutes of Virginia, in 1776.” Introduction, p. 11.

44 Commonplace Book, No. 873, p. 352Google Scholar. Professor Buckler has called my attention to the fact that in this point he anticipated Maitland who points out, “Never in England, nor perhaps in any other country, did the state surrender to the ecclesiastical tribunals the whole of that illimitable tract which was demanded for them by the more reckless of their partisans.” Maitland, F. W., Roman Canon la'w in the Church of England, Six Essays, London, 1898, p. 56Google Scholar. I quote more fully from the notes which Jefferson made, for the passage is highly illustrative of his method of thought and study. After citing a case which involved the question of the right of a patron to present to his advowson, the defendant being the Bishop of Lincoln, Jefferson notes: “A question was how far the Ecclesiastical law was to be respected in this matter by the Common law court? and Prisot C. J. on the course of his argument uses this expression: ‘a tiels leis que ils de seint eglise ont en ancien scripture, covient à nows a donner credence; car ceo Common ley sur quel touts manners leis sont fondes et auxy Sir, nous sumus obliges de conustre lour ley do saint elise; et semblahiement ils sent obliges de conustre notre ley, et Sir, si poit apperer or a nous que l'evesque ad fait come un Ordinary fera, en tiel cas, adonq nous devons ceo adjuger bon, on autrement nenly, etc.’… Finch mistakes this in the following manner ‘to such laws of the church as have warrant in holy scripture, our law giveth credence’, and cites the above case and the words of Prisot in the margin. Finch's law B. 1. c. 3. published 1613. Here we find ‘ancien scripture’ converted into ‘holy scripture’ whereas it can only mean the antient written laws of the church. It cannot mean the Scriptures 1. Because the ‘ancien scripture’ must then be understood to mean the bible in opposition to the new testament and to the exclusion of that would be absurd, and contrary to the wish of those who cite this passage to prove that the scriptures or Christianity is a part of the Common law. 2. Because Prisot sais ‘ceo [est] Common ley sur quel touts manners leis sont fondes.’ Now it is true that the Ecclesiastical law, so far as admitted in England derives its authority from the Common law, but it would not be true that the scriptures so derive their authority. 3. The whole case and arguments shew that the question was how far the Ecclesiastical law in general should be respected in a Common law court; and in Bro. abr. of this case Littleton says 'les juges del common ley prendra conusans quid est lex ecclesiae vel admiralitatis et hujusmodi’. 4. Because the particular part of the Ecclesiastical law then in question, viz. the right of the patron to present to his advowson not founded on the law of god, but subject to the modification of the law-giver and so could not introduce any such general position as Finch pretends. Yet Wingate [in 1658] thinks proper to erect this false quotation into a maxim of the common law, expressing it in the very words of Finch, but citing Prisot. Wing. Max. 3. Next comes Sheppard [in 1675] who states it in the same words of flnch, and quotes the Y. B. Finch, and Wingate. 3 Shep. abr. tit' Religion. In the case of the King and Taylor, Sr Matthew Hale lays it down in these words ‘Christianity is a parcel of the law of England.’ 1. Ventr. 293. 3. Kel. 607. but he quotes no authority. He was a sound lawyer when not biased by his belief in Christianity or Witchcraft, in both of which his faith was very perfect. He is famous for hanging witches. So strong was this doctrine become in 1728, by additions and repetitions from one another that in the case of the king v. Woolston the court would not suffer it to be debated whether to write against Christianity was punishable in the temporal courts at Common law, saying it had been so settled in Taylor's case ante. 2. Spa. 834, therefore Wood in his institutes lays it down that all blasphemy and Profaneness are offences by the common law and cites Strange ubi supra. Wood. 409, and Blackstone [about 1763] repeats in the words of Sr. Matthew Hale that ‘Christianity is part of the law of England’ citing Ventr. and Strange ubi supra. 4. Blackst. 59. Ld. Mansfield qualifies it a little by saying that ‘the essential principles of revealed religion are part of the Common law’ in the case of the Chamberlain of London v. Evans. 1767, but cites no authority and leaves us at our peril to find out what in the opinion of the judge, and according to the measure of his foot or his faith are those essential principles of revesled religion obligatory on us as a part of the Common law. Thus we find this string of authorities when examined to the beginning all hanging on the same hook a perverted expression of Prisot's or nothing, for they all quote Prisot, or one another, or nobody… [There follow then several sentences to the effect that “in later times we take no judge's word for what the law is further than he is warranted by the authorities he appeals to,” quoting Hale himself to prove that the Leges sen scriptae “have their several monuments in writing.”] Authorities for what is Common law may therefore be as well cited as for any part of the Lex scripta, and there is no better instance of the necessity of holding the judges and writers to a declaration of their authorities than the present; where we detect them endeavoring to make law where they found none, and to submit us at one stroke to a whole system no particle of which has its foundation in the Common law….” Ibid., pp. 351–354.

45 His argument to this conclusion is as follows. “… We know that the Common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that to the date of the Magna charta which terminates the period of the Common law, or Lex, non scripta, and commences that of the Statute law, or Lex scripta. [On this vide his note No. 869, pp. 346–349.] This settlement took place about the middle of the 5th century, but Christianity was not introduced till the 7th century, the conversion of the first Christian king of the heptarehy having taken place about the year 598, and that of the last about 686. Here then was a space of 200 years during which the Common law was in existence, and Christianity no part of it. If it ever was adopted therefore into the Common law it must have been between the introduction of Christianity and the date of the Magna charts, but the laws of this period we have a tolerable collection by Lambard and Wilkins probably not perfect, but neither very defective; and if any one ehuses to build a doctrine on any law of that period supposed to have been lost, it is incumbent on him to prove it to have existed and what were it's contents. These were so far alterations of the common law and became themselves a part of it, but none of these adopt Christianity as part of the Common law.” Ibid., pp. 354–355.

46 “Bracton gives us a very complete and scientific treatis of the whole body of the common law. He wrote this about the close of the reign of H. 3. a very few years after the date of the Magna charta. We consider this book as the more valuable as it was written about the time which divides the common and the statute law and therefore gives us the former in its ultimate state… Ibid., p. 355.

47 An excerpt from Aland, Fortescue, Preface to report XVIIGoogle Scholar. Justice Fortescue Aland, he says, “possessed more Saxon learning than all the judges and writers before mentioned put together.” Ibid.

48 Ibid., No. 879, p. 359. Chinard gives much of this note in his Thomas Jefferson, pp. 100–102. “This awkard Monkish fabrication,” Jefferson comments, “makes the preface to Alfred's genuine laws stand in the body of the work: and the very words of Alfred himself prove the fraud; for he declares in that preface that he has collected these laws from those of ma, of Offa. Aethelbert and his Ancestors, saying nothing of any of them being taken from the scripture. It is still more certainly proved by the inconsistencies it occasions.” Here again Jefferson anticipated modern legal opinion; Attenborough, cf. F. L., The Laws of the Earliest English Kings, Cambridge, 1922, pp. vi, 34–35Google Scholar, who follows F. Liebermann.

49 Ibid., pp. 359–362. Concerning witchcraft he notes that the forgery “punishes witchraft with death, § 30, which Sr,. Matthew Hale 1. P. C. ch. 33. declares was not a felony before the Stat. 1. Jac. c. 12. It was under that statute, and not this forgery, that he hung Rose Cullender, and Amy Duny., 16. Car. 2. (1662) on whose trial he declared ‘that there were such creatures as witches he made no doubt at all: for 1st, the Scriptures had affixmed so much. 2d, the wisdom of all nations had provided law against such persons—and such hath been the judgment of this kingdom as appears by that act of parliament which liath provided punishments proportionable to the quality of the offence,’ and we must certainly allow greater weight to this position ‘that it was no felony till James’ statute,’ deliberately laid down in his H. P. C. a work which he wrote to be printed, and transcribed for the press in his life time, than to the hasty scriptum that ‘at Common Law Witchcraft was punished with death, as Heresy, by writ de haeretico comburendo,’ in his Methodical Summary of the P. C. pa. 6, a work ‘not intended for the press, nor fitted for it, and which he declared himself he had never read over since it was written,’ Preface. Unless we understand his meaning in that to be that witcharaft could not be punished at Common law as witchcraft, but as a haeresy. In either sense however it is a denial of this pretended law of Alfred.” Ibid., p. 362.

50 Ibid., pp. 362–363.

51 On this point cf.Jefferson's, note from Locke's “A Letter concerning Toleration,” Works, (1722), Vol. II, pp. 232 ff.Google Scholar: “Our Savior chose not to propagate his religion by temporal punmts or civil incapacitation. If he had, it was in his almighty power. But he chose to extend it by its influence on reason, thereby showing to others how [they] should proceed.” Ibid., p. 378.

52 Cf. this opinion and relevant passages in the Bill for Establishing Religious Liberty; vide footnote 9. The parallelism of the above passage with the following from the Bill is especially close: “Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; and therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust or emolument, unless he profess to renounce this or that religious opinion, is depriving him injudiciously of those privileges and advantages, to which in conunon with his fellow-citirens, he has a natural right.” Ford, , Jeffersoin's Works, Vol. II, p. 440Google Scholar. C. Zollmanu, op. cit., pp. 12–13, criticises Jefferson's interpretation of the maxim, “Christianity is part of the law of the land.” Jefferson, he thinks, failed to discriminate “between a religion preferred by law and a religion preferred by the people without the coercion of the law.” Jefferson's objection to the maxim, however, arises just here, for he saw that it had been so construed as to reenforce the religion preferred by some of the people with the coercion of the law.

53 Cf. J. N. Figgis' statement to the effect that Henry IV “made his church a matter of policy,” while with the Politiques there developed the view that “the State must, if needful, be saved at the cost of toleration.” Figgis, op. cit., pp. 96, 99. Cf. Allen, J. W., A History of Political Thought in the Sixteenth Century, New York, 1928Google Scholar, Chapter V, “The Toleration Controversy,” especially pp. 98–100 on the views of Costellion and Acontius; and pp. 428–430 on Jean Bodin.

54 Commonplace Book, p. 379. SirStephen, Leslie, History of English Thought in the Eighteenth Century, New York, 1902, reprint, 1927, Vol. II, chap. x, pp. 144–151Google Scholar, gives a clear and concise account of Locke's ideas as developed in his “Letter.” Locke's argument includes three elements, viz., (a) a sceptical view, i. e., religious certainty cannot be attained “so far as to justify the State in using force:” (b) the moral argument, that force may effect outward conformity but not inward, a hypocrite but not a true believer; (a) the argument of utility that dissent will be harmless if unharmed. This last leaves open the question of the state's attitude toward obviously “mischievous doctrine,” and so raises the issue of the limits of toleration. Locke was satisfied to find those limits within the legal fiction of the social compact, a solution which to his antagonists seemed to beg the question since the compact is just what you make it. Hooker, whom Locke invoked for his theory of the social compact, arrived at conclusions quite opposed to consequences of Locke's position. Vide Hooker's Works, Keble, edition, New York, 1865, Vol. II, Preface, p. 139Google Scholar, and Bk. VIII, chap. i et seq., pp. 219–226.

55 Commonplace Book, p. 383.

56 Ibid.

57 Ford edition, Vol. II, pp. 440–441. C. Zollmann, op. cit., pp. 14–37, indicates the scope of this principle as recognized in the federal and state laws. Concerning blasphemy, for example, he says, “The law … forbids blasphemy on the ground that it is likely to provoke a breach of the peace” (p. 16). It should be added that for cases of radical dissent from the existing order Jefferson would probably offer the solution of self-expatriation which he regards as a natural right. Cf. Chinard, G., Thomas Jefferson, pp. 50–51.Google Scholar

58 Ibid., No. 797, p. 291. Concerning the influence of Montesquieu upon Jefferson Chinard says, (Ibid., Introduction, pp. 36–38) “Jefferson checked the theories of the Spirit of the Laws by personal observation, and in many instances discarded them, but it is difficult not to admit that at a certain time Moutesquien exerted a marked influence upon him…” Voltaire, on the other hand, seems to “have had little influence upon Jefferson.” (p. 49). As to Rousseau, he “would agree with Mr. Becker: the influence of Rousseau was absolutely negative, nor does it appear that at any time of his life Jefferson paid any attention to the Contrat Social, which is not even found in the manuscript catalogue of his library.” (p. 44). In Pelloutier, , Histoire des Celts and Histoire des Galates, La Haye, 1740-1750 and Paris, 1771Google Scholar, he found “an historical confirmation of the doctrine of natural rights.” (pp. 21–22; vide Nos. 696–716, pp. 168–181). Also, in Stanyan's, Grecian History down to the Death of Philip of Macedon, London, 1739Google Scholar, he found a “confirmation of the doctrine of popular sovereignty.” (pp. 22–23, and No. 717, p. 181).

59 For the eighteenth century view of natural law and a comparison of this with the thirteenth century's, vide Carl Becker, op. cit., pp. 38 ff. Cf. SirCarlyle, Robert W., A History of Mediaeval Political Theory in the West, New York, 1903-1928, Vol. II, p. 105 ff.Google Scholar, on Gratian's view of natural law, and Vol. V, pp. 30 ff., for Thomas Aquinas'. Aquinas, Locke, and Montesquien were in agreement on the superiority of natural law over human or positive law, while Aquinas held Eternal law to be supreme over both. But the eighteenth century, “having deified Nature, … could conveniently dismiss the Bible and drop the concept of Eternal law altogether.” (C. Becker, op. cit., p. 40). On the relation of Locke to political thought in the colonies vide H. D. Foster, “International Calvinism through Locke and the Revolution of 1688,” loc. cit.; D. S. Schaff, op. cit., follows in line with this previous article, indicating Locke's influence on Jefferson.

60 Jefferson's notes on Kames, Nos. 557–569, preceding as they do his notes from Montesquieu and Beccaria, could not have been made later than 1776, and were probably to be dated several years earlier. Vide Commonplace Book, pp. 13–14.

61 Jefferson's, Works, Memorial edition, Vol. XIV, 144Google Scholar. No. 694 of the Commonplace Book, p. 167, is a citation from Kames' Natural Religion on the topic of the appropriation of property in the Lacedemonian constitution. In 1792 Jefferson recommended the reading of Lord Kames (spelled ‘Kaims’ by Jefferson) to Peter Carr, though he admits that Kames “is too metaphysical.” (Chinard quotes from the letter to Peter Carr on p. 17 of his introduction to the Commonplace Book.)

62 Kames', Essays on Morality and Natural Religion (1751)Google Scholar is chiefly concerned with the refutation of Humes' idea that utility is the foundation of morals. The object of the work, says Tytler (op. cit., Vol. I, pp. 181–183), “is to prove, that the great laws of morality, which influence man as a social being, have their foundation in the human constitution; and are as certain and immutable as those of physical laws which regulate the whole system of nature.” Kames then attacks the doubt which Hutne casts upon the reality of the connexion between cause and effect, showing that “although the connexion betwixt cause and effect is not demonstrable by reasoning or strict argument, we are nevertheless equally assured of its reality … This belief, independent of demonstration, the author ascribes to an internal sense or principle of our constitution, which he asserts to be more authoritative in operating conviction than the strictest demonstration.…” (Ibid., pp. 187–188). Jefferson, be it noted, followed Kames' view of morality as instinct, and went so far as to oppose Helvetius and others of his school who rested morality upon utility. Vide footnote 8. Kames developes this same argument for the instinctive nature of the moral sense in his Sketches of the History of Man (1774), and declares that “Toleration in matters of religion is a moral duty of the highest order, and of universal obligation on the human race.” Ibid., pp. 146, 169, 173.

63 Historcal Law Tracts, Edinburgh, 1759Google Scholar; Chinard states that the edition current in the colonies was published in England without the author's name. For a summary of the contents of these tracts vide Pytler, op. cit., Vol. I, pp. 299–319; Adam Smith's criticism of them is to be found on pp. 318–319. Chinard gives his estimation of the influence of Kames upon Jefferson on pp. 18–19 of the Commonplace Book and in his Thomas Jefferson, pp. 84–85, “I am perfectly aware of the undeniable influence of Locke upon the theory of Kames;” he says, “and it would be very unlikely that Jefferson had not read Locke's Treatise on Civil Government at that date. The fact remains however that neither Locke, nor as far as I know, any other political thinker of the period, had so clearly defined that particular combination of individualism and respect for peace and good order which is so characteristic of the American conception of democracy. Jefferson could have endorsed without any change the whole Tract on Property, from the beginning to the conclusion—which he echoed in his Bill to Abolish Entails and in his proposal to abolish primogeniture. “In Kames, at any rate, he found a complete exposition of the theory of natural rights; and from the evidence furnished by the Commonplace Book it cannot ho doubted that the Scottish Lord was for him a master and a guide.” Commonplace Book, p. 19.

64 Vide Ford edition, Vol. II, pp. 64–65, 68, 83 ff., and Chinard, , Thomas Jefferson, pp. 48 ff.Google Scholar, where Chinard remarks that Jefferson formed his idea about the history of the settlement of England from studying Pelloutier, Sir William Temple, and Dalrymple.

65 Ibid., pp. 80–85, 204. In a notation which Jefferson made for his own clarification, given in Chinard, Ibid., p. 81, he distinguishes “between those they could individually exercise fully and perfectly and those they could not. “Of the first are the rights of thinking, speaking, forming and giving opinions, and perhaps all those which can be fully exercised by the individual without the aid of exterior assistance—or in other words, rights of personal competency. Of the second kind are those of personal protection of acquiring property, in the exercise of which the individual natural power is less than the natural right…. These I conceive to be civil rights or rights of Compact, and are distinguishable from Natural rights, because in the one we act wholly in our own person, in the other we agree not to do so, but act under the guarantee of society. Cf. Jefferson, Thomas, Notes on the State of Virginia (Lilly and Watt edition, 1832), p. 166Google Scholar, in which he states that “our rulers 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.” This was written prior to 1787.

66 Ford edition, Vol. II, pp. 438–439.

67 Ibid., p. 441, from Sec. III of the Bill.