"Jefferson's Constitution for Virginia"

Worthington C. Ford, "Jefferson's Constitution for Virginia," Nation, August 7, 1890, 107-109.

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JEFFERSON'S CONSTITUTION FOR VIRGINIA

WASHINGTON, July 28, 1890

Early in May, 1776, a convention of "delegates from the counties and corporations in the Colony of Virginia" assembled at Williamsburgh—the legislative and administrative body that was to bridge the passage from a government under the King to a government of the people, republican in form and spirit. For more than a year the nominal head of the colony, Lord Dunmore, had been powerless except for mischief, winning for himself, by his injudicious efforts to enforce the rule of his royal master, the enmity, and even hatred, of the "good people" of the colony. For more than a year local committees, self-constituted, acting as revolutionary bodies, and therefore under no laws or general system, had exercised what functions of defence, and too often of offence, were deemed necessary by a majority of their members, governed only be the rules of self-preservation. From these local committees grew the Colonial Convention, convening without definite aim or purpose, and containing within itself a difference of opinion that promised a protracted contest on every question that involved a change in the social order of the colony. The general constitution and characteristics of the leaders of this convention have been often described, and in a very satisfactory manner, by a Virginian, Hugh Blair Grigsby, whose sympathies and historical instinct were admirably adapted to sketch in broad outlines the personality of the session.

One circumstance, however, escaped his notice, as, indeed, it has that of every historian of Virginia, a circumstance at once interesting and picturesque—the fact that Jefferson prepared a constitution for the State and submitted it to the Convention. Having instructed its delegates to the Continental Congress to vote for independence of the Crown of Great Britain, the question of self-government naturally presented itself, for the Convention had expressly reserved to itself the "power of forming government for and the regulations of the internal concerns of each colony." The resolution for instructing the delegates on independence had resulted in a compromise, not being pointed enough for such as the Lees and Henry, and being too advanced for the Conservatives, who gave it their voice "for the sake unanimity." The question of framing a new government awakened a difference of opinion on more than one point. Would it not be well, asked Ludwell Lee, to have the Continental Congress prepare a uniform plan for governing America, to be approved by the colonies? Jefferson wrote to Edmund Randolph to oppose the formation of a permanent constitution for Virginia until a convention could be chosen by the people for that special purpose. "He denied the power of the body, elected as he conceived them to be the agents for the management of the war, to exceed some temporary regimen." But Randolph and the gentlemen to whom he showed this letter—Pendleton, Nelson, and Mason—could not accept such a position. They, to use Randolph's words, "saw no distinction between the conceded power to declare independence and its necessary consequence, the fencing of society by the institution of government. Nor were they sure that to be backward in this act of sovereignty might not imply distrust whether the rule had been wrested from the King."

This opinion carried the day, and the Colonial Convention at once set to work to "prepare a declaration of rights, and such a plan of government as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people." From the 15th of May to the 24th of June a large and able committee was engaged in carrying these instructions into effect, and after some amendments, on the 28th the first constitution or form of government for Virginia was unanimously adopted. It is known that the chief labor of framing the Constitution had fallen to George Mason, certainly one of the most competent members of the body. Col. Landon Carter, to whose opinion the greatest deference was shown, thought that "ambition had visibly seized so much ignorance all over the colony," and as a result the Convention abounded "with too many of the inexperienced creatures to navigate our bark on this dangerous cost." On the other hand, Patrick Henry, the leader of the popular element of the assemblage, complained of a want of associates of ability on his side of the question.

This complaint conveyed much meaning, for the social condition of the colony had given rise to two quite distinct factions, apart from the political difference that the Revolution had produced. Whigs and Tories were known, but the "good people"—that is, those who were opposed to the government of Parliament and the British Ministry—were divided among themselves quite as sharply as were ever the Whigs from the Tories. The large land owners formed an aristocracy, of great influence and of conservative views, while opposed to them were the so-called radicals and reformers, who, of more ardent nature, were intent upon introducing as great a revolution in the form of government for the colony as had been implied by the separation from English control. Henry complained that the aristocrats were strong in the committee appointed to frame a constitution and that "my most esteemed republican form has many and powerful enemies." Each party had its printed argument: the one supported an anonymous tract sent to the Convention from Philadelphia with a strong endorsement from Carter Braxton, the other read with approval the 'Thoughts on Government' written by John Adams.

Adams had addressed his pamphlet to George Wythe. It was Wythe who carried to the convention a sketch or outline of a constitution which Jefferson, then Congress, prepared. This, wrote Jefferson in 1825,

"I sent to Mr. Pendleton, President of the Convention, on the mere possibility that it might suggests something worth incorporating into that before the Convention. He informed me afterwards by letter that he received it on the day on which the Committee of the Whole had reported to the House the plan they had agreed to; that they had been so long in hand, so disputed inch by inch, and the subject of so much altercation and debate, that they were worried with the contentions it produced, and could not, from mere lassitude, have been induced to open the instrument again; but that, being pleased with the Preamble to mine, they adopted it in the house by way of amendment to the Report of the Committee; and thus my preamble became tacked to the work of George Mason."

It is not a little curious that Jefferson did not retain among his papers a copy of this attempt of his at constitution-making, or that he should not have had enough pride in his bantling to make some reference to its nature. He was, as a rule, careful in such matters. Of the composition that made his reputation as a

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writer before he entered Congress—the 'Summary View'—he wrote out two copies, one of which was sent to Patrick Henry. Of the Declaration of Independence he made a number of manuscript copies and distributed them among his intimates. In 1783 he prepared a draft of a constitution for the State, and so proud of it was he, as "reaching all the great objects of public liberty," that he printed it. His indifference to his earlier sketch is all the more noticeable as it allowed John Adams to pose as the mainstay of the Virginia Convention; for he claimed that it was his little pamphlet that influenced the Convention, and, while "amazed to find an inclination so prevalent throughout all the Southern colonies to adopt plans so nearly resembling that in the 'Thoughts on Government,'" he was not a little elated that the "pride of the haughty must, I see, come down a little in the South." He had felt not a little the arrogance of the Southern members in the first and second Congresses, but he knew well how essential it was to keep with them. The fact remains that for more than a century Jefferson's draft has been lost, and it has only recently been discovered near Lexington—two copies of it, both in Jefferson's MS., one with and the other wanting the preamble. Is it too great a stretch to conjecture that one, at least, was the identical manuscript that Wythe carried to Pendleton?

It would naturally be expected that Jefferson would favor a democratic constitution—one, that is, which embodied the idea that all powers rested with the people; yet his plan was less democratic than the instrument adopted by the Convention, for he would allow the people to participate directly only in the election of the lower house of the Assembly. All else was based upon a narrow foundation. The Senate was to be "appointed" by the House, and his first idea contemplated an appointment for life; but a second thought led him to make a term of service three years. The judges of the General Court and of the High Court of Chancery were to sit in the Senate, and be allowed to speak to a question, but they could not vote. The Executive, called "Administrator," a Deputy, a Privy Council, and a Treasurer were all to hold their offices of the House of Representatives; but all other officers, civil and military, with two exceptions, were to be appointed by the Administrator, such appointments being subject to the negative of the Privy Council. The people (that is, the freeholders) were to elect annually the high sheriffs and coroners of the counties.

The lower house of the Legislature in this way received all the privileges of appointment the King and Parliament possessed in the colonial system. All offices were then held at the gift of the King, and the Council was of royal appointment. The House of Burgesses alone was chosen by popular election, and its powers, save for annoyance and obstruction, were limited by the King's instructions to the Governor—instructions that could not be enforced by the Governor without the tedious, uncertain, and often dangerous appeal to the King to interpose his veto to a measure contrary to his wishes. The fear of a strong executive of the royal order led Jefferson to deny to the Governor any veto on the acts of the Legislature, and it was due to Patrick Henry that the power to negative was granted by the Convention, as he very properly proved that the want of it would tend to make the Governor an independent and not a coordinate branch of power. Jefferson himself may have seen the danger of this centralization of power in the hands of a single house, the members of which were to be chosen annually, but, once chosen, possessed the power to sit "so long as they should think the publick service requires"; for he appears to have had some doubt on the manner of appointing the Administrator and his deputy, naming the House of Representatives tentatively, for the words are enclosed in brackets. Even he provided that the "legislative, executive, and judicial offices shall be kept for ever separate." The actual constitution as adopted provided for a Senate composed of members elected once in four years from Senatorial districts; a House, chosen annually from each county; and with the two combined lay the appointment of Governor and Council, the judges of the Superior courts, Auditors, Attorney-General, Treasurer, Register of the Land Office, and Delegates to Congress. That was more democratic than Jefferson's idea.

The manner of electing Jefferson's House—the body of kingly powers—is worthy of notice. In the session of 1769 the qualifications of a voter were a freehold estate, or fifty acres of unsettled land, or twenty-five acres were there was a house, or a city lot improved—provisions liberal enough to include nearly the entire manhood of the colony, where land was to be had almost for asking. Jefferson wished to require "full age and sane mind," a freehold estate in land, that for the country being decreased to twenty-five acres; and he also gave suffrage to "all persons resident in the colony who shall have paid scot and lot to Government the last two years." Not content with this, he would make every man in the colony a qualified voter. "Every person of full age, neither owning nor having owned [50] acres of land shall be entitled to an appropriation of [50] or to so much as shall make up what he owns or has owned to [50] acres, in full and absolute domain, and no other personal be capable of taking an appropriation."

Having thus turned every man of full age and sane mind in the colony into a landholder and a voter, Jefferson passed to the question of representation, and here offered a distinct improvement upon the plan of the Convention. Among the complaints brought against the English Constitution (and its faults attracted at that time more attention than its virtues) was the inequality of representation in the British House of Commons. Yet the Convention provided for a representation of the counties in the lower house of Assembly quite as unequal as the British examples, for each county was to send two members without respect to the population it contained. Randolph explained the acceptance of this provision by saying "that the counties to the eastward of the Blue Ridge, in which the inequality was most glaring, were too numerous to be irritated, and it was tacitly understood that every body and individual came into the revolution with their rights, and was to continue to enjoy them as they existed under the former government." Jefferson, on the other hand, would give a representative for every 400 freeholders, thus basing it upon population. The result of the retention of the old provision was that "nineteen thousand, living in one part of the country, give law to upwards of thirty thousand living in another, and appoint all their chief officers, executive and judiciary."

Two-thirds of either house constituted a quorum, and there was little limit to the powers or functions of the Assembly. Capital punishment was abolished save in cases of murder and offences against military discipline; and a law for levying money could not remain in force longer than ten years from the time of its commencement. Beyond this the Assembly could legislate on any subject, for it was the executive that was the object of Jefferson' s jealousy, and round which he sought to throw prohibitions and restrictions. The Administrator "shall possess the powers formerly held by the King," save only that he could not dissolve, prorogue, or adjourn either house; he could not declare war or make peace, issue letters of marque or reprisal, raise or introduce armed forces, build armed vessels, forts, or strongholds; he could not coin money or regulate its value, or regulate weights and measures, or erect courts, offices, boroughs, corporations, fairs, markets, ports, beacons, light-houses, or sea marks; nor could he lay an embargo, nor prohibit the exportation of any commodity for a longer space than forty days; nor could he make denizens, pardon crimes, or remit fines or punishments, or create dignities or grant rights of precedence. All these powers or functions could be exercised by the Legislature alone. The Administrator was liable to action, though not to personal restraint, for private duties or wrongs, and all his acts were to be controlled by law. The want of a veto on the acts of the Assembly made him powerless to oppose what he might deem a dangerous policy, and would have rendered supreme what does in fact tend to become the most powerful element in a republican government, the Legislature.

There is much in this draft that does not properly belong to a constitution, much that was later the subject of special legislation in Virginia under Jefferson's own direction. He would have abolished slavery to this extent: "No person hereafter coming into this country shall be held in slavery under any pretext whatever." He would have abolished entails, and made all descents go "according to the laws of Gavelkind, save only that females shall have equal rights with males." Seven years' residence, or a declaration of an intention to such a residence, and a subscription to the fundamental laws of the commonwealth, would entitle a person to "all the rights of persons natural born." Religious liberty was provided for; printing-presses should be free, "except so far as by commission of private injury they may give pause for private action." There should be no standing army except in time of war, but the freeman was not to be debarred the use of arms "within his own lands or tenements." Royal claims to wrecks, waifs, strays, treasure trove, mines, royal fish and royal birds were declared to be "usurpations on common right" and abolished. The judiciary system of the State was elaborately provided for, but the details of that branch need not be described. Finally, "no salaries shall be given to the Administrator, members of the legislative houses, judicial officers, privy councillors, or delegate to the American Congress"; but, should the Legislature so direct, the "reasonable expences" of these officers "for subsistence while acting in the duties of their office" might be borne by the public.

Such were the main features of the instrument which Jefferson devised for the government of Virginia. The details are of interest not only in themselves, but to an even greater degree for the light they throw upon a contemporary document, the authorship of which is still one of the unsolved problems. I have already mentioned a tract which appeared during the sessions of the Convention, and which had been sent to Philadelphia about the same time as Adams's 'Thoughts on Government.' Little was known of its origin, but as it bore a strong recommendation from Carter Braxton, he was suspected of being its author, and came in for the blame that his ex-

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pressions of doubtful Whiggism aroused. Yet the pamphlet embodied in its proposed constitution many of the same features that Jefferson inserted in his draft. A lower house elected for three years, a Senate chosen for life by the House, a Governor, Treasurer, Secretary, and "other great officers of the State" elected by the lower house, judges to be appointed by the Governor, with the advice of his privy council, and all military and inferior civil officers to hold their appointments of the Governor—this was as narrow a system as that of Jefferson's, and as open to the objection of centralization. The one, however, was regarded by the Convention as an "aristocratic" programme, and Braxton received some pretty hard knocks for recommending it; yet Jefferson's was quite as aristocratic.

By comparing his Constitution of 1783 with that of 1776, it may easily be seen how great a stride Jefferson had taken in democracy. As the proposition of 1783 is included in his published works, it may be referred to and need not detain me here. A later proposition, a suggestion for a change in the State Constitution, appears never to have been noticed. It is without date, and Jefferson's hand-writing changed so little in the active years of his life as to furnish no clue to the period at which a memorandum may have been made. The paper on which this note was written is watermarked 1794, so it may be attributed to that period of leisure which followed his retirement from Washington's Cabinet, while he was nursing his sore grief over the monarchical tendencies of the Administration, and the growth of centralization that threatened to swallow up the individual States and erect an engine of oppression such as the world had never seen. With such an incubus resting upon him, it is not to be wondered at that he should have developed an almost extreme democratic remedy. I doubt if the like proposition has ever been seriously broached in a community that claims to be self-governed, or that is capable of exercising due judgment in matters of government. After providing for the election of a legislature, to consist of not less than 150 or more than 300 members, Jefferson makes this original proposition:

"The Legislature shall form one house only for the verification of their credentials, or for what relates to their privileges. For all other business they shall be separated by lot into two chambers, which shall be called [a and w], on the first day of their session in every week; which separation shall be effected by presenting to the representatives from each county separately a number of lots equal to their own number, if it be an even one, or to the next number above, if their number be odd, one-half of which lots shall be distinctly marked for the one chamber, and the other half for the other; and each member shall be, for that week, of the chamber whose lots he draws… "Each chamber shall appoint a Speaker for the session, and it shall be weekly decided by lot between the two Speakers of which chamber each shall be for the ensuing week."

It is unfortunate for us that merely the bald proposition is made, without the interesting explanation of the reasons for the proposed change that Jefferson might have recorded. In the absence of such an explanation, it is difficult to conjecture his purpose, for this weekly shifting of the members and speakers of two houses, elected by the same constituencies, would have introduced as great a novelty into the political system of Virginia as did Jefferson's famous pêle-mêle into the social system of Washington. The latter almost produced a diplomatic complication that war alone could solve; the former would have produced legislative anarchy that nothing but a reversion to the earlier Constitution could have cured. That he had some purpose must be conceded, for during his Presidency he generally sought to cover his policy by special amendments to the Constitution, as in the case of the Louisiana purchase, internal improvements by the national Government, and a national university. Yet there is nothing in the political condition of Virginia between 1794 and 1801 that could call for such a remarkable experiment in government, nor does the proposition appear to have been submitted to his friends. None the less, it was a genuine product of Jefferson's mind, and as such is essential to understand the progression of his political ideas.

WORTHINGTON C. FORD