The Glorious Cause, page 77
After the bill failed to pass in 1785, Madison removed retaliation for mayhem before resubmitting it in October 1786, although the opposition may not have objected to this punishment. The opposition did, however, object to confining capital punishment to the crimes of murder and treason. The bill failed by a single vote. Madison reported its loss to Jefferson with a bitter comment—”The rage against Horse stealers had a great influence on the fate of the bill. Our old bloody code is by this event fully restored....”17
“A Bill for the More General Diffusion of Knowledge” was equally dear to Jefferson. In it he proposed the establishment of several levels of schools at public expense in order to provide at least three years of education for all children—girls as well as boys. These three years, in “hundred” schools, were to teach reading, writing, and arithmetic and the histories of Greece, Rome, England, and America. The state would also establish grammar schools, twenty in all, where Latin, Greek, English, geography, “and the higher part of the numerical arithmetick” would be taught. Most of the students in these schools would attend at their parents’ expense, but a small number of able children of the poor would be entered with all costs to be borne by the public. And the most promising senior from among the poor children would be sent, again at public expense, to William and Mary College for three years.18
Although “all hands,” according to Madison, conceded the necessity of some systematic provision for public education, the bill did not survive the scrutiny of the Assembly in 1786. The objections voiced by the delegates came down to financial cost and to doubt that the administration of this hierarchy of schools could be made to work. Some delegates apparently pointed to sparse settlements in several parts of the state, and westerners complained that the districts were laid out unequally. Madison dismissed this last protest as specious and seemed skeptical about the seriousness of the other criticisms.19
There may have been another reason for the bill’s failure. It may have seemed to promise more social equality than most Virginia planters wanted. The bill did not propose to level society; with its assumption that the best should govern, it had elitist implications, as Julian Boyd, the editor of Jefferson’s Papers, has pointed out. But while it proposed that men of “genius and virtue” should be educated so that they might be enabled “to guard the sacred deposit of rights and liberties of their fellow citizens,” it provided that they should be “called to that charge without regard to wealth, birth or other accidental condition or circumstance.” Jefferson believed that men of ability might be found in any rank in society. They must be trained to their mission—at the public expense if necessary. If they were not, the unworthy—“the weak or wicked”—might dominate government.20
That only the talented should have power was elitism; that the talented might be discovered anywhere was not. Jefferson’s assumptions suggested that he believed that elitism and egalitarianism might be reconciled, and the means lay in education that drew on public as well as private resources.
Most of the gentry probably did not consider such a reconciliation desirable. The gentry had long been willing to look deep within itself for fresh recruits for government. All it required of candidates was that they be gentlemen and that they have talent. Now Jefferson asked the gentry to settle for talent alone on the assumption that it resided in the poor as well as in the rich. That supposition went down hard in men accustomed to assuming that quality was to be found only in their own kind.
Yet these same men gave Jefferson his greatest triumph in Virginia by approving a Bill for Establishing Religious Freedom. Their action did not come easily or quickly. When independence was declared everyone in Virginia, whatever his religion, paid taxes in support of the established church, the Episcopal Church, as the Church of England was soon called. Dissenters, especially Presbyterians and Baptists, now demanded that they at least be freed of this requirement. Although reluctant, the legislature granted relief for a year and extended it annually until 1779 when it was made permanent. At the same time the legislature suspended the requirement that members of the established church pay parish rates, but it did not abolish these rates. The church thus remained established, and the old statutes and the common law which permitted the state to punish heretical opinions continued in effect.21
War made conciliating the dissenters desirable, of course, and the defenders of the establishment therefore held their passions in check until peace was concluded. Restraint never came easily to Patrick Henry, one of those defenders, and in 1784 he gratefully took up the fight for the church again. He saw his opportunity in a question raised in the act of 1776 of “Whether a general assessment should not be established by law, on every one, to the support of the pastor of his choice, or whether all should be left to voluntary contributions.” Henry revived the question apparently with the argument that the corruption of society inevitably followed the disestablishment of the church. For a time the dissenting clergy found this line, and the prospects of full treasuries, irresistible. Such distinguished Virginians as Edmund Pendleton and Richard Henry Lee also backed Henry.22
Laymen in and out of the establishment did not share the ardor of their clerical leaders. Episcopal laymen had long governed their church, and they recognized that a general assessment could only strengthen the clergy, still faintly tainted with loyalism. Lay Baptists and Presbyterians were suspicious, not of their own ministers but of anything that would enable the old establishment to rise again. And these dissenters seem to have been moved by the argument that held that to protect religious freedom the state must be denied any part in religious life. Madison’s “Memorial and Remonstrance against Religious Assessments” offered a petition at this time that drew considerable support—in all 1552 signatures were collected. In it Madison cited the article in the “Declaration of Rights” which hold that religion “can be directed only by reason and conviction, not by force or violence” and which denied the legislature jurisdiction in matters of religion and opinion. As for rulers who interfere with churches and opinion about religion—they are “tyrants,” and the people who submit to them are “slaves.” It soon became evident that Virginia would not submit to a general assessment for churches, and in 1785 the bill quietly went to its grave without even the dignity of having been voted on.23
The next year, in January, the Assembly passed Jefferson’s “Bill for Establishing Religious Freedom.” This act disestablished the church and made clear the legislature’s intention that the establishment should never be restored. The rights the Assembly was protecting, it explained, “are of the natural rights of mankind,” and “any act [that] shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.” Before the Assembly approved Jefferson’s bill it stripped out some of his most forceful phrases declaring his faith that religion must be founded on reason and the free operations of the mind. But it included his statement “that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”24
The making of the constitution in 1776 and Jefferson’s attempts at reform suggest much about the Revolution in Virginia. Jefferson’s efforts followed a decade of protest at Parliament’s designs on colonial rights. Virtually all of those rights bore on governance, especially on the right of the individual to give his consent through his representation to measures affecting his life and on the freedom of traditional institutions to self-government. The Americans in the ten years before 1776 signified their devotion to principles of self-government, and in 1776 they announced them clearly in the Declaration of Independence. Jefferson and such thoughtful Virginians as James Madison believed that Virginia had an opportunity to extend the limits of freedom announced in the Declaration so as to affect the arrangements of ordinary life—the way land was held, the punishment of crimes, the legal status of blacks, the education of the young, the maintenance of religion, and the freedom of expression. Jefferson indeed thought that the Assembly should act immediately to encourage liberty while American passions were still engaged in the great struggle of the Revolution. For, he observed in 1781, “It can never be too often repeated, that the time for fixing every essential right on a legal basis is while our rulers are honest, and ourselves united. From the conclusion of this war we shall be going down hill. They will be forgotten, but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier, till our rights shall revive or expire in a convulsion.”25
From several perspectives Jefferson failed. The constitution of 1776 did not provide for a more effective expression of the consent of the governed. Slavery remained almost what it had always been; the punishment of criminals continued to be an exercise in savagery; and the state could not bring itself to educate the children of the poor.
Where Jefferson and his friends succeeded—and the Declaration of Rights, the destruction of entail and primogeniture, the Bill for Establishing Religious Freedom, were remarkable achievements—they did so by making explicit the connection of their reforms to the great principles of the Revolution. Success came, for example, in disestablishing the church through the demonstration that religious and political liberty could not be separated.
Even linking the reforms to the Revolution did not inevitably carry the day. The gentry of Virginia, however seriously devoted to the principles of republicanism, did not usually agree that their radical extension would serve Virginia or the Revolution. The gentry saw themselves as the heart of the Revolution, their interests were vital to it, their leadership and power held society together. They were used to the deference of the lower orders, and they could not understand why they should be expected to undermine it. Nor could they see why racial slavery should be ended. It had served everyone well just as most of the institutions of society and government had.
IV
Men who have more than their lives to lose make one sort of revolution, and those who have only their lives to lose make another. The Virginians, like almost all Americans, were of the first sort. Had they had nothing to lose, they might not have stopped with the disestablishment of the church, they might have destroyed it. They might not have freed access to the land; they might have abolished private property or they might have destroyed small owners. They might have encouraged the slave trade and made slavery even more barbarous. They might have toughened an already tough criminal code. They might not have simply rejected the British constitution, they might have converted constitutionalism into authoritarianism. Nowhere in America were there many men who felt they had nothing to lose; and nowhere did such men seize power.
New men, some called them “outsiders,” had made their way into the unofficial committees that had helped organize resistance to Britain before independence. In Pennsylvania, the outsiders or radicals exercised more power than anywhere else in America, especially in 1776 when they captured the informal government of the state and replaced the elected Assembly. These men located themselves firmly within the movement against Britain, and they advocated independence before other patriots could bring themselves to the break. Thomas Paine served as the mentor of many of the radicals. Their deepest ties, however, were to farmers, especially in the West, and to skilled craftsmen, men of small property and ambitious to make their desires public policy.
The most important desire of radical leaders and their followers was to extend the power of ordinary people—democratic aspirations provided the cement for the radical movement. The leaders included at least two men of considerable wealth, George Bryan, a merchant, and the Quaker, Christopher Marshall, a retired druggist. Timothy Matlack was one of the most popular among workers and artisans. Not an ignorant man—he read papers before the American Philosophical Society—he had the common touch, brewing beer for a living and racing horses and fighting cocks for sport. The enlisted men of his militia regiment elected him a colonel in 1775. James Cannon, a teacher in the College of Philadelphia, assumed an important place among the radicals almost as soon as they began to form. He had emigrated from Edinburgh in 1765, and he came with an ability to write, a skill he demonstrated in the convention that drafted the constitution in 1776. There was at least one itinerant agitator among the radicals, Thomas Young, the son of Irish immigrants. Young popped up in several places during the Revolution, always as an advocate of liberty. The radicals could also claim a fine mathematician as one of their own, David Rittenhouse, a skilled watchmaker who won fame for his orrery, a mechanical representation of the relative positions and movements of bodies in the solar system. Charles Willson Peale, a captain of Philadelphia militia, was a radical. Peale, a silversmith and watchmaker for a time, painted the portraits of many of the great revolutionaries. After shoving the Assembly to the side in 1776, these men and others like them got a convention called and wrote the most democratic constitution of the era.26
The Pennsylvania constitution of 1776 abandoned any pretense of mixed government. The radicals believed that the people’s interest was one, and any attempt to construct a government on any other assumption would deny the principles of republicanism. Thomas Paine had taught them that the structure of American society departed from Europe’s. Those state constitutions which sought to balance the traditional orders of society ignored the important differences between Europe and America. Paine was right about society in America—there was no hereditary nobility that required its own house in the legislature and of course there was no monarch.
In other states the problem of the upper house, what it was and who it represented, baffled constitution-makers. Only Massachusetts, in the constitution of 1780, made its Senate the representative of property. Virginia did not although Edmund Pendleton had hoped that it might. Jefferson, of course, envisioned the Senate as a source of greater wisdom than was available in the House. It should not be representative of a social interest, he thought, but a repository of good judgment.
Most states came, haltingly, to an understanding of a Senate similar to Jefferson’s. The Senate would act as a brake on the lower house whenever the lower house behaved rashly. The Senate would balance the legislature. Something like this argument came to be accepted as the justification for bicameralism. The two houses would, in a phrase that soon became current, check and balance one another. The trouble with a single-house legislature lay precisely in its lack of balance. Whatever the protections written into a constitution against its arbitrary use of power, there was in reality only one way to check it if it wished to ignore the constitution. And that way was to establish a second body of comparable powers to block it when it threatened to overturn the constitution or act in opposition to the public interest.27
Nothing in such arguments persuaded the radicals in Pennsylvania of the wisdom of mixed government, and the convention, which they controlled, established a unicameral legislature. The radicals took pains to ensure that the General Assembly, as the legislature was called, would remain close to the people and never remove itself from their control. First of all the Assembly was to be elected by male taxpayers. Its members could not serve for more than four years in any seven; they must stand for election annually; they must take an oath to protect the people’s interests; and their proceedings must be open to the public. The constitution also established a procedure which was designed to give the people as much knowledge as possible about proposed legislation. All bills were to be printed “for the consideration of the people, before they are read in general assembly for the last time for debate and amendment.” The General Assembly could not enact bills into law until after the session following their printing.28
Beside the General Assembly, the other branches of the government were weak. A president and supreme executive council made up the executive but lacked a veto on legislation, indeed lacked almost any power. The courts too were carefully limited. To guarantee further the rights of citizens, the convention inserted a bill of rights into the constitution. This part of the document was drawn almost completely from the Virginia “Declaration of Rights.” Still the radicals were not satisfied. To protect the people and the constitution they devised an agency called the council of censors, modeled on the Spartan Ephori and Roman Censors, which was expected to review the government’s performance every seven years. The council of censors, an elected body, might call a new convention if it thought amendments were needed.
In Pennsylvania the democratic impulse achieved a level of power unequaled elsewhere. But the expression of that power in the constitution of 1776 did not go unchallenged. Although the economy and the Bank of North America were issues in the politics of the 1780s, the constitution provided the center of division. Two factions which attained a remarkable level of organization grew up around the constitution—its opponents, the Republicans, and its defenders, the Constitutionalists. The split between the two did not have a class basis, though each felt considerable social antagonism toward the other. The Republicans contained more businessmen, merchants trading overseas and with other colonies, than the Constitutionalists, but a variety of groups made their way into both camps. The Quakers solidly opposed the constitution, for its requirements of an oath barred them from the General Assembly, and a law imposing a similar requirement on voters passed soon after the constitution took effect disenfranchised them. The allegiances of other religious groups were less clear.
