Virginia Constitution, "lack" of religious tests, TJ, & heresy

 I, for a long while, was under the initial impression that the 1776 Virginia Constitution can be seen as an exception when it came to the imposition of religious test oaths for public office. The following snippet had led me (and many others) in that direction:

The Virginia State Constitution: a reference guide, Part 56 by John J. Dinan

Section 7. Oath Or Affirmation

All officers elected or appointed under or pursuant to this Constitution shall, before they enter on the performance of their public duties, severally take and subscribe the following oath or affirmation:

   "I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and I will faithfully and impartially discharge all the duties incumbent upon me as ______________ according to the best of my ability (so help me God)."

Although the current oath has been uncontroversial, previous oaths have generated significant controversy. The 1864 Constitution was the first to require officeholders to take an oath [my italics] and the purpose was to ensure that officeholders were not supporters of the Confederacy. Then, the 1867-68 Convention approved a "test-oath" that would have prevented a significant number of past supporters of the Confederacy from holding state office. Both of these oaths approved by the 1867-68 Convention provoked significant controversy, whether at the time or in coming years. [end excerpt]

A little research shows that my initial impression was wrong. As can be readily seen, the Virginia Constitution doesn't lack religious test oath legislation.  See Founders Online here, and here, and again here, which show, early on (~1779), a list of various test oaths for state office.

In Virginia, even when an oath-taker held religious scruples that person still had to “repeat the formulary, which in his opinion, is or ought to be observed on such occasions, according to the religion in which such person professeth to believe, … .” While apparently quite tolerant this particular clause put a person like Thomas Jefferson in an awkward position.

Thomas Jefferson, an unorthodox Christian, was elected Virginia Governor on June 1, 1779. According to common law & Virginia statute TJ should have served from jail. At least, that’s how Frederick Jonassen (So Help Me ?, pg. 329, footnote 148; also Bradley) put it:

Until 1786, a non-Christian in Virginia would have to keep his religious opinions to himself because of a statute that made it a criminal offence to publically utter a non-Christian view."' <148>

148 - It is not clear how these provisions were enforced, whether through religious tests or otherwise. And a “professed atheist, polytheist, or unorthodox Christian” in Virginia presumably “would have had to serve from jail, because both by common law and statute Virginia criminalized at least the public utterance of such views. Note as well that Anglicanism was "established" or preferred even to other Protestant sects in Virginia until 1786.51

Gerard V. Bradley, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself, p. 683; 51 - Isaac, Evangelical Revolt: The Nature of the Baptists' Challenge to the Traditional Order in Virginia, 1765 to 1775, 31 WM. & MARY L. REV. 345-68 (1974); 52 - S. BOLTON, SOUTHERN ANGLICANISM 5 (1982). 

Written in 1781 and 1782, Jefferson assessed the state of religious rights in Virginia after the 1776 Constitution in his Notes on the State of Virginia Query #17 (published 1785):

QUERY XVII

Religion

The present state of our 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 at 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 haeretico comburendo. By our own 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 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 [my italics].

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.