Friday, 26 February 2016

Draft Constitution for Virginia, Part I: Context

            I’d like to make something clear before I begin this next series of posts.

            In spite of how often his work has appeared here, and thus how frequently he has been a topic of discussion, I do not think of myself as a particular admirer of Thomas Jefferson. He was undeniably an intelligent man, as well as eloquent and exceedingly knowledgeable about a great swath of topics, but there are absolutely certain elements of his personal and political philosophy that I disagree with in no uncertain terms. I am not, if I may use the term, a Jefferson apologist, nor do I think that if we all just paid a little more attention to what he said and what he did the world would be in better shape. That being said, the man unquestionably makes for a fascinating object of study. For all his brilliance, his wide-ranging interests, and his dominant influence in American history, politics, and culture, he was a deeply flawed individual. He could be mercurial, cunning, reserved, and self-effacing. He decried, for the better part of his political career, the evils of centralized government, and yet when handed the reigns of federal power did more to expand its influence in America than all of his predecessors combined. It would be hard, I think, not to find such a man intriguing, particularly when he wrote so often and so well about such a great variety of subjects.

            This brings us to the present case. As I hope I've made clear by now, one of the reasons America, On Paper exists is because I wanted to share my appreciation for the primary source texts of the American founding with whoever would take the time. It is my firm belief that the best way to get to know the men (and women) who gave birth to the United States, and whose thoughts and opinions continue to be haphazardly thrown about in the media and in politics, is to read the words that they wrote. This is a harder task than might appear – hence why I've attempted to do some of the legwork of establishing context, sources, and comparisons – but ultimately very rewarding. Unfortunately, not every Founder was terribly prolific, and so the picture we are left with, here at the dawn of the 21st century, is somewhat skewed towards those who were. George Washington, for instance, is an incredibly important figure to understand the principles and motivations of if one hopes to gain a deeper appreciation for how and why the United States turned out the way it did. As it happens, however, Washington was not much of a philosopher or an essayist. He wasn't the sort of person to pen lengthy treatises on the nature of American liberty, or the practical limitations of representative government, and so we are left with a rather limited canon of documents through which to attempt to gain insight into who the man was, what moved him, and why (or if) he is worthy of continued commemoration. His Farewell Address is mercifully rich in its philosophical and ideological content, but it nonetheless remains one a very small number of documents through which a modern inquirer could hope to known George Washington in any real sense.

            Thomas Jefferson, love him or hate him, was somewhat more generous with his pen. By somewhat, of course, I mean that the man practically filled libraries with his personal correspondence, dashed off dissertations like it was going out of style, and compiled enough travelogues, agricultural and geological surveys, and philosophical meditations so that a person could build a small dwelling out of the compiled volumes and still have something left over to read on a rainy day. He was, in short, a prolific writer, and so their remains very little about which Jefferson’s opinion cannot be solicited. This is, through one lens, a good thing. It allows us to construct an exceedingly complete picture of one of the single most important people in the history of the Western world. Through another lens, however, it can be said that relying too much on the works of Jefferson as a means of understanding the American founding possibly twists our perception so as to portray the Sage of Monticello as the one and only prime mover in early American history. This is obviously an undesirable outcome, and one which I have attempted to push against by turning my frequent attention to a number of Jefferson’s contemporaries, be they Federalist or Anti-Federalist, Northerners, Southerners, immigrants or native sons (or daughters).

            In spite of the effort on my part, however, I find myself wanting to shine a light on Jefferson once more. I had not necessarily planed to return to him. But, as these things so often happen, a point of discussion in the most recent series of posts led me down a particular path of enquiry, and then to a handful of documents, and then to that smug, chameleonic Virginian once more. And so, as I again embark on an examination of some of the work left to us by Albemarle County’s favorite son, I ask of my readers their indulgence, their patience, and if need be, their forgiveness.

            Though I can’t promise it won’t happen again.

            Lengthy and almost certainly unnecessary pseudo-apology aside, the document in question that will hereafter be discussed is most definitely an intriguing one. Written in the spring and early summer of 1776 while Jefferson was serving in the Second Continental Congress, it is a draft of a constitution for his home state of Virginia. This, on the surface, probably doesn't sound so remarkable. Jefferson was a Virginian, through and through, and though he served over the course of his life in a number of high federal offices, his home state remained always very close to his heart, and greatly informed his vision of what kind of country the United States ought to be. So of course he had a hand in writing Virginia’s first constitution.

            But the thing is, he didn't; or at least not substantially

            By the time Jefferson settled on a plan for the government of independent Virginia that he was satisfied with and sent the draft from Philadelphia to Williamsburg, his colleague George Mason (1725-1792) had already submitted his own version to the appropriate committee. Jefferson’s constitution was thereafter considered as an alternative, received support from a handful of those present, and had certain of its elements incorporated into the final document. Consequently, though there was some small sliver of Jefferson present in the 1776 Constitution of Virginia, the finished product was then understood, and should still be, as Mason’s brainchild. For this reason Jefferson’s original draft, written in Philadelphia during those same months when he lent his pen to the crafting of a declaration of American independence, represents a vision of what could have been; a version of Virginia that only ever existed on paper, and in the mind of one of America’s most celebrated revolutionaries. As a consequence, because the draft that survives did not suffer being “mangled” by a committee of those who would no doubt have sought to moderate Jefferson’s more radical proclivities, it is a more revolutionary document than the one ultimately adopted. In this sense the document provides a rare opportunity.

There is a veritable mountain of missives that Jefferson dashed off over the course of his life which represent at least a sampling of his honest and unadulterated perspective. And he was the author of numerous essays, pieces of legislation, declarations, and public addresses across the length of his public career, many of which addressed areas of philosophy or administration that were near and dear to his heart. But hardly any of these written works are as broad in scope or fundamental in approach as a codified constitution. Rather than detail his opinion on freedom of religion, say, or provide insight into his thoughts on international trade, the framework he penned in mid-1776 for a new government for Virginia encompassed nothing more or less than 33-year-old Jefferson’s vision of the ideal republic. However he was forced to compromise his vision when working alongside collaborators, or when confronted by practical limitations, the draft constitution represents Jefferson at his most raw and idealistic, and accordingly perhaps his most honest. Studying said constitution thus makes understanding the Jeffersonian ideal – so influential in subsequent decades – much easier. Rather than having to intimate what kind of society the Sage of Monticello would have preferred exist in America from fragments or suggestions contained in various other documents, one need only examine the plan he very clearly laid out for his home state’s government. As well, a comparison of Jefferson’s constitution with Mason’s, and also with the colonial charters that preceded them both, aids in understanding how the Founding Generation set about transforming the societies in which they lived and what their approximate threshold for change was.

But of course, before we dig into any of this, a little background. Because, as aforementioned, Jefferson has been a frequent topic of discussion in these pages, there is very little more that needs to be said about who he was in 1776 and what sort of life he had led up to that point. It will therefore hopefully suffice to simply reiterate that he was the son of a surveyor and prominent Virginia landowner, that he was born near that colony’s western frontier, and that he was a lawyer by trade. It may also be worth noting, as a nod to his contemporary public profile, that he had already written a well-regarded pamphlet in 1774 refuting the claimed British right to tax the American colonies (A Summary View of the Rights of British America) and then co-wrote a declaration by the Second Continental Congress explaining the logic behind their decision to take up arms against the British government (Declaration of the Causes and Necessity of Taking up Arms). It would perhaps also be prudent to examine, in light of the subject of the coming discussion, what sort of government Virginia existed under prior to 1776.

Virginia, as mentioned in a previous post detailing the origins of each of the original Thirteen Colonies, was the oldest of its brethren, and its history was somewhat troubled in the early years. After the first efforts at colonizing the western seaboard of North America in 1606 by the competing London and Plymouth Companies (both divisions of the joint-stock Virginia Company) failed, the former was able to successfully petition the Crown in 1609 for a revision of its original charter. Thereafter its territory encompassed the entire modern coastlines of Delaware, Maryland, Virginia, and North Carolina (extending, theoretically, to the Pacific Ocean). Subsequent settlements in this expanded territory struggled to prosper, however, due to poor access to resources, disease, and frequent contact with hostile Natives. Government during this formative era, between 1609 and 1619, was exercised by a Company-appointed Governing Council, headed by a President. Thomas West, 3rd Baron De La Warr (from whose title is derived the name “Delaware”) attained the latter position in 1609 (as “Governor”), and because of his frequent absences power was most often exercised by a series of deputies. The third of these deputy governors, Sir Thomas Dale, enacted a legal code in 1612 known as the “Lawes Divine, Morall, and Martial” which effectively conferred on him a kind of dictatorial authority, and erected a series of exceedingly strict punishments (up to and including execution) for a host of outwardly trivial offences. Though it has been argued that Dale’s harsh administration in Virginia was what ultimately allowed the colony to overcome its earlier difficulties, particularly in terms of economic self-sufficiency, it was his uncompromisingly authoritarian leadership that perhaps led to the most significant transformation of colonial Virginian society.

Or, more specifically, it was the reaction to his leadership that set Virginia on such an important path. Though Dale had overseen a period of increased economic stability in the young colony, his style of leadership was not viewed by the Governing Council as necessarily conducive to the enlarged immigration Virginia sorely required if its population was to recover from years of poor harvests and frequent epidemics. Accordingly, the colony was granted a new charter by the Virginia Company in 1618 that established an elected assembly, mandated civilian control of the military, and granted fifty acres of land to all those who paid their passage from England in full. The assembly, known subsequently as the House of Burgesses, was not independent of either the appointed governor (who possessed a veto on their legislation) or the Company (who could revoke the charter at will), but did for the first time permit colonial residents some say in how they were governed and taxed. When the newly-elected Burgesses met for the first time alongside the Governing Council (together comprising the Virginia General Assembly) in July, 1619, it represented the effective beginning of European-style representative government in the Americas.

The House of Burgesses was initially composed of 22 members representing an equal number of constituencies, and all free men were permitted to vote in their election. After the massacre of several hundred colonists by Natives in 1622, preceded and followed by a pair of destructive epidemics, Virginia again passed into brief era of particularly firm governance by the Company and its appointed Governor and Council. In 1624, responding to the frequent crises that seemed always to be besetting the long-standing venture and the evident inability of the Virginia Company to arrive at a permanent solution, James I had its charter summarily revoked. Virginia was consequently reorganized as a Crown colony, though the government established under the 1618 charter remained largely intact. In the one hundred and fifty years that followed between the re-charter of Virginia as a Crown Colony and the events of the American Revolution, the colonial government underwent only minor changes. Beginning in 1634, Virginia was divided into 8 counties whose significance was mainly administrative and judicial. This number was expanded to 15 in 1643. County-level offices were appointed, including clerks, sheriffs, constables, and judges, and after 1670 the franchise was narrowed so as to permit only property owing males the right to vote in elections.

 Slavery, one of the most important and most divisive issues in Jefferson’s era, no doubt also bears some degree of explanation, in terms of its origins in Virginia. In spite of how important the institution would become to the colonial, and later state, economy, it was introduced gradually; the first Africans appear in the historical record 1619 as indentured servants. By 1650 there were some 300 Black Africans living in Virginia under terms of indenture, along with 4000 White Europeans in a similar state of servitude. While certain among these African servants succeeded in paying off their contracts and becoming property owners in their own right, between the 1640s and 1660s the colonial government began to alter the manner in which Black indentured servants were legally perceived. As punishment for escape attempts, constituting essentially a violation of their contracts, Black servants began increasingly to be sentenced to life service to their aggrieved master. In fairly short order life servitude became the norm for imported Africans in Virginia, partly in response to increased demand for labor stemming from the growth of plantation agriculture and the viability of cash crops like tobacco. When, in 1660, a mixed-race indentured servant named Elizabeth Key successfully sued the colonial government for her freedom on the grounds that she was both a baptized Christian and the acknowledged daughter of a free Englishmen, the House of Burgesses responded in 1662 by adopting the doctrine of partus sequitur ventrem. This legal concept, meaning literally “that which is brought forth follows the womb,” decreed that all children born in the colony thereafter were to inherit the legal status of their mother. Though it represented a violation of English Common Law tradition (whereby children took the status of their father), it was likely deemed necessary by the colonial government as a means of ensuring the continued existence of a stable labor pool in light of chronic population instability, the general unwillingness of Whites to take on menial vocations, and the needs of the burgeoning export economy.

By the dawn of the 18th century, both the political and economic status quo in colonial Virginia had more or less solidified to the point where they would have been recognizable to men like Thomas Jefferson and George Mason seventy years later. This was in spite of an attempted rebellion against the authority of Governor William Berkeley (1605-1677) that was led by English settler and colonial statesman Nathaniel Bacon (1647-1676) in 1676. The revolt was supported by a wide swath of discontented Virginians from across the social orders, including planters who desired to expand westward into Native-held territory and landless laborers who desired the right to vote. Bacon also found the bulk of his armed following among the Black enslaved and White indentured servants who constituted the bulk of the colony’s labor force. The insurrection was ultimately crushed thanks to armed support from the British government. Thereafter, property qualifications on the franchise were reinforced, and a slave code was drawn up in 1705 that more clearly established and defined the practice of chattel slavery in the colony and helped establish a degree of social segregation so as to discourage any future alliance between discontented Blacks and Whites.       

There are several things which ought to be drawn from this brief chronicle which bear directly on an examination of Jefferson’s draft constitution of 1776. One is that, again, the system of government in Virginia that was replaced in the 1770s had been in operation, with minor changes, for something on the order of a century. It had managed to weather a great deal of economic uncertainty, attacks by Native Americans, enduring problems stemming from an unstable population, devastating epidemics, and at least one major armed rebellion. Yet, from 1619 until 1776 the House of Burgesses continued to operate, elections continued to be held, and Governors continued to be appointed (first by the Virginia Company and then by the Crown). This perhaps speaks to the flexibility and durability of Virginia’s charter government, as well as to the relative conservatism of the resulting society. After all, the culture that developed in Jefferson’s home colony was doubtless greatly affected by the manner in which it was administered; by the 1770s elections were no doubt considered “normal,” as were slavery, property qualifications, and some degree of deference to royal authority. To what degree Jefferson’s proposed state constitution deviated from or conformed to these established norms is potentially illustrative of what elements of his own culture the Sage of Monticello felt were in need of reform, as well as to what extent he felt his fellow Virginians were willing to accept change.      

            Also worth noting, in light of the history of government in Virginia, are the priorities that continually seemed to sustain the colonial population amidst decades of well-documented hardship. In addition to being molded by their government, settlers, landowners, and laborers also shaped it in turn by what they were willing to accept, what they actively resisted, and indeed what drove them to choose Virginia in the first place. As mentioned above, the elected House of Burgesses was created in 1619 with the aim of encouraging settlement. This would seem to suggest that representative government was felt to be an enticing proposition by the directors of the Virginia Company. The fact that the colony thereafter survived and expanded potentially speaks to the clarity of their wisdom. While it would be impossible to say for certain why every person who settled in Virginia after 1620 did so, it is perhaps a fair guess that at least a portion were attracted by the promise of having some input into how they were governed. In the same sense, some of the declared objectives of those involved in Bacon’s Rebellion, namely the demand for an un-landed franchise, indicates both the probable size of the landless population in the late 17th century as well as the importance that continued to be attached to the vote over fifty years after it was first introduced. Though the 1676 revolt was ultimately defeated, it nonetheless represents an instance wherein the political status quo in Virginia was actively challenged by a broad-based alliance of landed and landless citizens. In light of Jefferson’s attempt in 1776 to far more drastically alter how Virginia was governed,  and in turn affect how its culture and society functioned, it was perhaps worth keeping in mind what kind of people Virginians had thus far proven themselves to be.

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