The Glorious Cause, page 76
Between July 12, 1776, when the committee reported and November 17, 1777, when Congress finally approved the Articles of Confederation, the delegates virtually rejected the committee’s report and made drastic changes which firmly tied Congress’s hands—and freed those of the states. Not all the changes concerned the relations of the states to Congress. One crucial one which did—the decision not to give Congress control of western lands—delayed ratification of the Articles until March 1781. Maryland wanted Congress to control these lands and refused to ratify the Articles. Maryland’s intransigence arose not from a desire to strengthen Congress but from an intention to weaken those states with claims on the interior of the United States. When in 1781 Virginia ceded her claims to the West, Maryland ratified and the Articles went into effect.
Article II of the new constitution disabused Congress of its pretensions to supremacy by providing that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Under the Articles, Congress continued to control foreign relations, and it alone could make war. But the states, as the constituting power of the Union, clearly retained the upper hand.
II
By 1783 the public spirit and the structure of government of the Union virtually dictated that Americans would look to the states—not to Congress—for direction. By this time, indeed, the states, stimulated by the great purposes of the Revolution, had already done much.
None had contributed more to the Revolution than Virginia. The credit for the state’s remarkable performance must be given to an elite, the gentry, an uncommon group which led Virginia into the Revolution and continued to lead afterward. The gentry drew the support of small Virginia planters early in the century and held it through merit—not coercion.
The gentry never included more than 5 percent of Virginia’s white population in the eighteenth century, and within this number, according to historian Jack Greene, lay a core of about forty major families which provided the important leaders of Virginia. If the gentry and its leaders were small in number, they were not exclusive. To be sure the gentry did not welcome just anyone to its ranks—wealth and talent were the requirements for entrance—but it remained relatively open in the eighteenth century. The gentry in England and in several colonies, most notably New York, was closed compared with Virginia’s.3
Virginia’s finest were not idle men. They worked hard at raising tobacco and, as the century went along, wheat and other grains. This hard work did not involve using their hands. A large number of slaves did the planting and cultivating and harvesting crops—and carrying them to ships for transport to the European market. Not manual labor, but organizing and managing the labor of others was the task of the gentry.
The gentry also governed. They dominated government at every level, from county courts to the House of Burgesses and the Council. They did not have to force themselves on the lower orders. The franchise remained broad throughout the century, and the electorate chose able men. Lesser planters deferred to wealth and ability and apparently agreed that men with these qualifications should run things. The gentry agreed, of course, but they did not abuse the deference extended to themselves by the lower orders. They provided remarkably responsible government—not out of unalloyed nobility but out of a sense that their interests were essentially the same as those they governed. To a large extent they seem to have been right in this judgment. Everyone grew tobacco for the market, and everyone faced the same problems.
In a peculiar sense the existence of large numbers of black slaves may have helped induce the powerful to protect the liberties of poor whites. As Edmund S. Morgan, the historian, has told us, there was an affinity between slavery and freedom in Virginia. The horrors of the enslaved made the free sensitive to the blessings of liberty. The horrors did not persuade them, however, to free the slaves. Slaves were too valuable as a source of labor. And they were brutish—“vicious, idle, and dissolute” if left to their own devices, just as the English poor were. Therefore they must be kept in slavery—to provide labor and to prevent their committing outrages against whites and themselves. Long before the Revolution, Virginians had established the racist policies which perpetuated slavery. If these policies did not encourage coercive practices against slaves, they at least permitted them and gave them the approval of the law.4
Thus slavery encouraged white men to think of their liberties. It taught them that property was supremely important: property as ownership of the self, of land, and of others made one free. And among whites of all orders slavery established a kind of equality, an equality of free men who in large part lived from the labors of the enslaved.
In the crisis of the decade before independence, Virginia planters proved to others just how much they valued their liberties. During the year of independence they framed a constitution for the state. As the first drafted in the new states, it exerted great influence elsewhere in America.
The fifth Virginia Convention drafted the constitution of 1776. The Convention was actually the old House of Burgesses under a new name, for it was elected by freeholders from the old constituencies. Four Conventions had preceded it as the government of Virginia. The first had met in August 1774 following the dissolution of the Burgesses the previous May by Governor Dunmore. The governor, a tough character with a nose for sedition, had acted in response to passage of a resolution in the House calling on all Virginians to express discontent at the Boston Port Bill by observing a day of fasting and prayer. In two years’ time, of course, passing resolutions in favor of prayer no longer seemed enough. On June 12, 1776, the delegates issued a “Declaration of Rights,” and on June 29 approved a new constitution for the commonwealth.
George Mason had a major part in the composition of both. Mason seems to have had no more use for oratory than did his old friend and neighbor George Washington. But he could write with a skill that Washington never attained. In the Convention he apparently did not speak much, but he made himself heard in the “Declaration of Rights.”
The first article of the “Declaration” set its tone: “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” In the fifteen articles that followed, the Convention established that sovereignty resided in the people, that government was the people’s servant, and when it failed the majority had a right “to reform, alter or abolish it.” The Convention also declared that there should be rotation in office, periodic elections, due process in criminal prosecutions; and that there should not be excessive bail, general warrants, and standing armies in time of peace. The “Declaration” stated Virginia’s commitment to trial by jury, to a free press, and “to the free exercise of religion.”5
With the approval of the “Declaration of Rights,” the Convention proclaimed Virginia’s faith in principles which it believed should define free government. The government established by the constitution which was approved a little more than two weeks later did not fully conform to these principles. The “Declaration” had located power in the people, but the people were not given the opportunity to ratify, or reject, the constitution of 1776. To be sure, there was little likelihood that they would have rejected the constitution, for except in the structure of government it proposed, it was not a “radical” document. And the shape of the government it devised is understandable. In the form the Convention gave the new government it expressed the disenchantment of the Revolution with executive power.
Ostensibly the structure expressed the American faith in balanced government, for the constitution required that “the legislature, executive, and judiciary departments, shall be separate and distinct, so that neither exercise the Powers properly belonging to the other.” But in fact the constitution apportioned power in a way that assured the supremacy of the legislature, the General Assembly of Virginia. The Assembly, composed of a House of Delegates and a Senate, chose the governor annually by ballot of both houses. The governor could do little without the concurrence of a Council of State, eight men also chosen by the Assembly. Even when he acted with the Council he possessed limited force: he could not veto legislation nor could he nominate judges or other important officers of the government. The constitution also denied him authority to dissolve the Assembly or even to prorogue or adjourn it.6
Within the Assembly, the House of Delegates, the successor to the Burgesses, ran things. Each county elected two members while the Senate consisted of twenty-four men chosen every four years from electoral districts. Only the delegates could initiate legislation; the Senate might propose revisions except in money bills, which it had either to approve or reject as the House presented them.
The old colonial franchise was left untouched. Those with land would choose the rulers of Virginia. And, as Thomas Jefferson pointed out, most of the rulers—the delegates and the senators—would be chosen from the tidewater. The western part of the state which had always been under-represented would remain so.
III
Some men feel a persistent unease about the human condition. Thomas Jefferson was not of this sort, but in 1776 he feared that Virginia might allow the opportunities opened by the Revolution to escape. He had returned to Philadelphia as a delegate to the Congress in May 1776, just as the Virginia Convention was about to frame a constitution. He was soon to write the Declaration of Independence, great work he recognized, and yet his mind remained fixed on Virginia. What he yearned to do was to have a voice in the production of a constitution for Virginia. Establishing a government, he said at this time, “is the whole object of the present controversy.”7
Jefferson of course remained in Philadelphia to compose the “Declaration.” But he wrote to members of the Virginia Convention and drafted several versions of a constitution for Virginia. His letters and his rough drafts tell us much about his ideas and help chart constitutional thought in the state.
Jefferson’s constitutions resembled the one enacted in Virginia in several respects. The general frame of government was similar, but it was better balanced. The Senate, the executive, and the courts were all stronger. The Senate indeed in his first two drafts of a constitution was to be elected by the House and serve for life. The need for balance led Jefferson to this arrangement. As he explained to his friend Edmund Pendleton, he wanted “to get the wisest men chosen, and to make them perfectly independent when chosen.” Jefferson had a much broader conception of who composed “the people” than most men of his day—he would extend the vote “to all who had a permanent intention of living in the country”—but he did not think that good government was served by allowing them to choose both houses of the legislature. One house should be reserved to the wise. But how to discover them?8
Leaving the choice to the lower house appealed to him, because as he said, “a choice by the people themselves is not generally distinguished for its wisdom.” Their first “secretion” is “usually crude and heterogeneous. But give to those so chosen by the people a second choice themselves, and they generally will chuse wise men.”9
Pendleton did not agree, preferring instead to reserve the upper house for men of “great property” who would sit for life. The disadvantage in giving their selection to the lower house lay in the dependence thereby created. So chosen, they would be “the mere creatures of that body and of course wholly unfit to correct their Errors or Allay casual heats which will at times arise in all large bodies.” Jefferson did not disagree with all of this, but he did not share Pendleton’s confidence in wealthy men—“my observations,” he observed, “do not enable me to say I think integrity the characteristic of wealth.”
What he was convinced of was that the Virginia constitution had placed all the powers of government in the legislature. Five years after independence, he wrote that the concentration of those powers “in the same hands is precisely the definition of despotic government.” It did not matter that many hands in the legislature would exercise these powers, for –173 despots would surely be as oppressive as one.”10
That the Constitution included no provision for popular ratification constituted further evidence of its defectiveness in Jefferson’s eyes. The Convention itself was an ordinary legislature and hardly competent to lay out fundamental law. Yet when it completed its work, the work was considered a constitution.
Jefferson aimed not simply to reorder a government but also to change the society supporting it. Thus in the constitutions he drafted he recommended that fifty acres of land be allocated to all males who owned none, that the trade in slaves be prohibited, that the death penalty be abolished except in cases of murder, and that “all persons shall have full and free liberty of religious opinion: nor shall any be compelled to frequent or maintain any religious institution.” None of these ideas made their way into the Virginia constitution.
Frustrated by the Convention’s caution, Jefferson turned to the new government itself. Although the Convention had wanted him to remain in Congress, in September 1776 he resigned and the next month, after the freeholders of Albermarle County elected him, took his place in the House of Delegates.
There in October 1776 Jefferson introduced two important bills: one, quickly passed, abolished entails. The rule of entail confined property to a particular lineage which could not be altered by the owner except by the permission of the legislature in a special act. A related practice, primogeniture, required that property of an owner who died without a will must pass to the eldest son. Jefferson regarded both of these institutions as aspects of a feudal inheritance that had no place in a republican society. Each provided a basis for aristocratic privilege and threatened liberty.11
Although Jefferson in October did not make an attempt to rid Virginia of primogeniture, the second bill he offered would open the way for an attack on it—and virtually every other vestige of feudal and monarchical practice still haunting Virginia. This bill, which passed into law as rapidly as his proposal to discard entails, required the House of Delegates to appoint a committee to revise and codify the laws of Virginia. Whether the House conceived of this revision as somehow “revolutionary,” that is, as an attempt to change fundamentally the statutory basis of Virginia law, is not clear. The committee the House appointed held different opinions about what it should do, but it resolved them and set to work.
The committee of five able men soon shook down to three: Edmund Pendleton, Speaker of the House and a distinguished lawyer; George Wythe, not as well known but a fine scholar and lawyer; and Thomas Jefferson, unusually brilliant and just coming into the fullness of his powers. Over the course of a long friendship Pendleton and Jefferson agreed on much and disagreed on much. At first they disagreed about what the committee of revisers should do. The usually “conservative” Pendleton, ordinarily disposed in favor of ancient things as Jefferson observed, proposed that they abandon the existing system of laws and devise an entirely new one. Jefferson wanted only to bring the laws of Virginia into conformity with the needs of the present, and apparently without great strain persuaded the committee of his wisdom. What Pendleton wanted to do seemed almost impossible, given the research, drafting, and persuasion required to pass even one statute.12
In June 1779 the committee finished its work, 126 bills covering a variety of subjects from the institutions by which the war might be directed to such matters as education, crimes and punishments, the church, plus many others. A few were enacted almost immediately, for example, “A Bill Establishing a Board of War,” but most of those which eventually passed did so after the war when James Madison pushed them through the Assembly while Jefferson was in France. The Assembly never acted on the revised code as a whole but took up the bills piecemeal. Thirty-five passed in the session of October 1785, and twenty-three more in the autumn session of 1786.13
The bill on slavery was not the one Jefferson hoped to see through the Assembly, a bill which would have provided for gradual emancipation. The committee of revisers thought the prospects of such a bill were so bleak as to make its introduction useless. But they did prepare an amendment by which slaves born after the passage of the act would be freed on reaching adulthood. After training in a calling at the public expense, slaves were to be sent out of the commonwealth to be colonized at a distance remote from white society. Jefferson recommended colonization because he believed that blacks and whites could not live together peacefully. Their complex and terrible history made racial harmony unthinkable: “Deep rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real distinctions which nature has made; and many other circumstances, will divide us into parties, and produce convulsions which will probably never end but in the extermination of the one or the other race.”14
This amendment was never introduced. Neither Jefferson nor Madison, nor the others who shared their conviction that slavery somehow must be ended, detected a spirit favorable to it in Virginia. What was approved reenacted the prohibition against the slave trade, which had passed in 1778, and continued the customary restrictions on slaves. They could not leave their masters’ plantations without permission, for example; nor could they testify in court cases involving whites. Their gatherings and their speech were also closely regulated.15
The revisers offered a bolder measure in the “Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital.” Jefferson drafted this bill, a work of scholarship as well as of law, its substance on crimes and punishments supported by citations from the modern authority, Beccaria, the classics, Anglo-Saxon laws, and the common law. The bill reduced the number of offenses calling for capital punishment to two, murder and treason, and it limited severely the number of offenses to be punished by mutilation or maiming. But it retained the principle of retaliation for certain crimes—“Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort. . . . For men convicted of rape, polygamy, and sodomy, Jefferson prescribed castration; for a woman, “cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.”16
