Draft Constitution for Virginia, Part V: Legitimacy

With the examples of Governors Berkeley and Dunmore in mind, the method behind some of Jefferson’s proposed alterations to the government of his home state become rather evident. In the absence of a royal authority responsible for appointing a chief executive, there were only so many options remaining. There existed, in the spring of 1776 when Jefferson was busy crafting his draft constitution, no federal government to speak of in what would become the United States of America. Pre-independence, the Continental Congress was more of a coordinating body for the combined efforts of the Thirteen Colonies to resist British repression than a national legislative entity. Leaving the choice of Virginia’s governor up to some nominal federal authority in place of the Crown was therefore not feasible. As an alternative, making his “Administrator” popularly elected would surely have crossed Jefferson’s mind. It certainly occurred to those among his contemporaries who determined to include just such a provision when drafting constitutions for their own states (as in the 1777 New York constitution, the 1777 Vermont constitution, and the 1780 constitution of Massachusetts). The legitimacy of a chief executive chosen directly by the people would have been very difficult to question indeed. By also limiting the relevant term in office to, say, one, two, or three years, it might further have been ensured that perhaps the single most powerful position within the state government was also one of the most directly invested in the passions and the concerns of the general population. Placing greater discretion as to how they were governed in the hands of his fellow Virginians was, as aforementioned, a prospect that seemed to appeal to Jefferson. That being said, creating a popularly-elected chief executive would not have solved the larger issue of competing legitimacies.

Granted, having an elected executive and an elected lower house was doubtless an appealing prospect in 1776. Stripping away the prerogatives traditionally associated with the British Crown and investing them in an individual chosen by the people themselves would surely have fulfilled the long-suffering hopes of the republican philosophers among the Founding Generation, and left it abundantly clear whose sovereignty was paramount in Virginia. What such a provision seemed ill-designed to do, however, was prevent any future recurrence of intractable conflict between the legislative and executive authorities. While disagreements between different branches of government, and the accordant impulse to seek compromise, is a fundamental aspect of how government functions in the modern United States, no such confidence existed at the dawn of the American Revolution that such conflicts could be resolved by anything other than force of arms. If the governor and the legislature of a state were to differ on some point of law or policy and both refused to retreat from their respective positions, each claiming that they possessed the legitimacy of the people’s confidence would likely fail to offer any obvious solution. If the sovereignty of the people of a state was the fundamental authority to which all government was beholden, there could presumably be no stronger position for either side to adopt. Law might perhaps award a veto to the chief executive, in keeping with the powers traditionally afforded the monarchy and its representatives, but experience had theretofore proven that such measures rarely quieted the cries of an aggrieved party who felt they were subject to the people’s will alone.

Shifting most of the responsibility traditionally afforded the executive to the popularly-elected legislature, while also making that executive responsible to said legislature, no doubt appeared to Jefferson an eminently satisfactory solution. So narrow was the remit of the Administrator he described in his draft constitution, and so alternately powerful the House of Representatives, that it seems highly unlikely any significant disagreements could have arisen between the two under such a system of government. By eliminating almost any possibility of their responsibilities overlapping, Jefferson seemed intent on effectively compartmentalizing the legislative and executive branches. The General Assembly, dominated by the lower house, was to be responsible for almost every major matter of state, from war, to monetary policy, to licensing, to pardons. Its members chosen by the voting public, there was to have been virtually no question of their legitimacy as the undisputed prime mover within the government of Virginia. The Administrator, meanwhile, was to be a pale shadow of the royal governor he was intended to replace. Beyond presumably serving as the chief representative of the state government in matters of diplomacy – a power nowhere mentioned in the draft constitution but rather inferred from it not being granted to any other body – the chief executive was to be responsible for appointing, “Officers civil and military,” excluding High Sheriffs and Coroners and subject to the veto of the Privy Council, the selection of county court judges, also requiring Privy council approval, and the appointment of judges to the General Court and the High Court of Chancery. Recalling that the Privy Council was itself to be appointed by the House of Representatives, it appears Jefferson intended to keep the chief executive of his home state on a very short leash.

Were this not enough to prevent any possible conflict from emerging between the legislative and executive branches of the government of Virginia – of the kind that had led to open conflict between some portion of the citizenry and their governor on more than one occasion – Jefferson delivered the final blow to the power and independence of his Administrator by making the office one that was appointed by a vote of the House of Representatives. Accordingly, in the unlikely event that the limited powers of the chief executive led them into conflict with the General Assembly and neither side professed a willingness to submit to the other, there could be no question as to which party possessed the confidence of the people. The Administrator that Jefferson proposed was therefore effectively the creature of the lower house; its members were solely responsible for filling the office, and could seemingly ignore the occupant they chose at their own discretion. In response, the Administrator would have had little recourse. Any legitimacy it possessed flowed through the medium of the House of Representatives. In effect, the barest shred of the sovereignty the people of Virginia delegated to the lower house by electing its members was thereafter to be reserved and delegated to the Administrator, for all it was worth. A chief executive thus limited in its authority would seem incapable of threatening either the rights of the general population or the prerogatives of the elected legislature. Consequently, any conflict between that office and the empowered lower house, on the off chance that it did arise, would have been easily resolved.

It bears mentioning that Jefferson was not the only member of the Founding Generation who determined upon weakening the executive branch when drafting a state constitution. As mentioned previously, British Enlightenment and republican philosophy combined with the events of the 1760s and 1770s to produce a culture of extreme suspicion towards centralized and unchecked authority in the American colonies. This manifested itself in a very tangible way when the political elite within each of the colonies set about the task of crafting independent governments. Numerous of the constitutions that resulted took power away from the chief executive and vested it instead in the elected legislature, while also rendering said executive subject to legislative appointment. This was the case in the first constitutions of Delaware (1776), Maryland (1776), New Jersey (1776), North Carolina (1776), and South Carolina (1776). The framers of each of these documents saw fit to delegate the appointment of a chief executive (be it a governor or president) to a joint ballot of the upper and lower houses of their respective legislatures. Georgia’s 1777 constitution (the first of ten between the 1770s and the 1980s) described a unicameral House of Assembly which was likewise tasked with selecting a governor, while the constitutions of Pennsylvania (1776) and New Hampshire (1776) both vested executive authority in a council that selected its own leadership (in both cases, a president). The specific mechanisms by which these states were to select a chief executive varied significantly in terms of who was doing the actual voting, a consequence of the manner by which their upper and lower legislative houses were formed (popularly elected, appointed, chosen via an electoral college, etc.). That being said, aside from the aforementioned constitutions of New York, Vermont, and Massachusetts, there seemed to be a rough consensus among the membership of the Founding Generation that executive authority, while a necessary component of a successful republican government, needed to be restrained by strong legislative oversight if it was to be made safe. As the text of his draft constitution for Virginia bears out, Jefferson seemed to be very much of this opinion himself. Where he differed from almost all of his contemporaries, however, was in the supreme confidence he seemed willing to place in the elected House of Representatives his plan of government described.

The fact that most of the other state constitutions made the appointment of a governor subject to a joint ballot of the upper and lower legislative houses indicates a desire to balance and harness two distinct sets of opinions in the selection of a chief executive. In cases when the lower house was popularly elected while the upper house was appointed by the former, the distinction between these opinions might fairly be described as interested versus disinterested – that is, directly beholden to the whims of the voting public versus beholden to a smaller, more knowledgeable, and more measured body. In other instances, wherein the upper house was also subject to popular election, the different perspectives manifested by the two legislative bodies could perhaps be described as economic or social in nature – middle class/upper class, merchant/planter, etc. Regardless of the nature of their divisions, however, the purpose of granting two bodies so characterized the responsibility of selecting a single head of state was to ensure that a variety of perspectives was brought to bear on the selection of what was undeniably an extremely important – and potentially dangerous – office.

As mentioned above, Pennsylvania and New Hampshire pursued slightly different arrangements than the majority of their sister states, in that they both granted executive authority to a body of councillors (Pennsylvania’s being popularly elected, New Hampshire’s being chosen by the lower house), from which a president was selected. Provisions such as these represented an aberration, relative to the other state constitutions adopted in the 1770s, though they still seemed to flow out the same conception of executive authority that defined much of the post-Revolutionary American experience. Leaving the selection of the President of New Hampshire to the executive council, which in turn was appointed by the popularly-elected lower house, created a layered system of accountability and discretion – the people chose their representatives, who chose the councillors, who chose the chief executive, and at each step the sovereignty of the people was transferred, and the political consensus distilled and refined. Pennsylvania, though it also made use of an executive council, left the selection of a singular president from among its ranks to a (stop me if you’ve heard this one) joint ballot of the council itself and the unicameral General Assembly. As with most other contemporary state constitutions, the logic behind this scheme was almost certainly concerned with balancing the perspectives and concerns of the two bodies so as to ensure that the choice they arrived upon was mutually satisfactory.

Jefferson, ever the radical, pursued none of these options in his draft constitution for Virginia. He did not attempt to divide responsibility for selecting his Administrator between different bodies of the General Assembly in the hope that the wide spectrum of opinion contained therein would result in the wisest possible choice. Nor did he determine to erect a system of layered accountability, whereby the selection of his home state’s chief executive was the end result of narrowing and moderating the body of electors until the individuals responsible for the final choice represented the refined, concentrated embodiment of the needs of the state itself. Rather, he quite simply assigned the task of appointing a chief executive to the members of the popularly-elected House of Representatives. This might perhaps seem to have been the lazy choice, as it involved the least complicated procedure and occurred within a single constituent body (instead of requiring the coordination of two or more such entities). It might also be fairly perceived as a particularly irresponsible choice. Recalling that in the 18^th century the notion of party politics was not looked upon favorably, and thus every member of the House of Representatives Jefferson outlined would have been at least a nominal independent, the prospect of allowing between 125 and 300 (as he defined its membership) people to decide amongst themselves which single person in the state of Virginia would act as their chief executive appears enormously daunting. When one also recalls that members of the lower house were to face election every single year, the possibility of the debate being defined by rank populism and insularity, if not utter chaos, seems positively immense. Nevertheless, it was the choice Jefferson made, and it says a great deal about how he perceived concepts like democracy, “the people,” republicanism, and executive power.

As discussed previously, Jefferson’s personal ideology, ever-changeable though it was, seemed always to have a definite populist bent to it. Among the Founding Generation, there were few who more strongly championed the rights of the American people, or who advocated more eloquently for their inclusion in the mechanisms of government. Granted, his high-minded idealism and passion for the prerogatives of the average citizen faded somewhat in his later years, worn down by decades of practical experience in government and the cynicism such things often breed. The Jefferson of 1776, however, was still a young man of 33, brimming with optimism and ready, in an almost literal sense, to change the world.  It should not come as a galloping shock, then, that this Jefferson was prepared to overturn centuries of precedent, both British and American, by trusting the popularly-elected representatives of his beloved Virginia to choose their own chief executive. As mentioned above, the Sage of Monticello often seemed particularly concerned with the democratic accountability of government in America, on the state and national level alike. The forms of government he accordingly tended to favor were those that were the most responsive to the needs, concerns, and aspirations of the general population. Consequently it is not difficult to understand why, when crafting what he believed would be the first independent government of Virginia, he settled on empowering the single most democratic branch of that government.

This he did in what might seem in retrospect to be a reckless fashion, vesting enormous power in a body of men whose chief concerns – as a consequence of the manner of their election – would seem inevitably to devolve upon whatever would allow them to maintain their positions. All other branches of government under the framework he described – though independent of one another in keeping with the best principles of republican philosophy – were to be subordinate to this functionally unstable lower house, rendering any potentially paralysing administrative deadlock wholly moot. Forced to wonder, once again, why Jefferson determined upon including a singular chief executive in his frame of government at all, one might consequently be forgiven for speculating that he intended the presence of an extremely weak and ineffective Administrator to serve as a kind of living monument to Virginia’s (if not America’s) fundamental disdain for unrestrained executive authority. This was almost certainly not the case, though it would seem a fairly accurate reflection of Jefferson’s feelings on the nature of political power, and the evils he and his countrymen had suffered at the hands of monarchs and governors who claimed their prerogatives from a power above and beyond the people. In Jefferson’s Virginia, no such power was to be acknowledged. The people were to be the ultimate authority in the constitution he devised; the House of Representatives was to directly reflect their will, and the legitimacy of almost every important office and decision was to flow outward from it.

On a final note before moving on, those of you who have been paying attention no doubt noticed that I described Georgia’s 1777 constitution as having granted the power to appoint a governor to the state’s unicameral legislature. Because said legislature was in turn elected by the duly enfranchised people of Georgia (all white males 21 and over who possessed £10 worth of property or were “of any mechanic trade,” and who had lived in the state for at least six months), it might perhaps appear that the arrangement Jefferson proposed in his draft constitution was in fact not unique among Virginia’s sister states. This is true, in essence, but with a few important caveats. Because Georgia’s first post-independence state legislature was unicameral while the General Assembly Jefferson proposed was to be bicameral, the significance of his choice to grant the House of Representatives executive appointment power still stands. Georgia possessed no upper house with which to share the responsibility of choosing a governor. Settling on a unicameral structure was most definitely an important choice in itself, and one which was doubtless subject to the same kind of complex considerations this discussion has hopefully begun to illuminate. But the fact of it meant that when it came time for the framers of Georgia’s constitution to determine how their governor was to be chosen, their options were accordingly more limited. In short, they chose a unicameral legislature, and they chose to make the chief executive directly responsible to that legislature, but they did not reject the joint ballot model that had been embraced by so many of their contemporaries. Rather, it was simply not an option given the decisions they had made already.

This may sound like a tremendously pedantic thing to insist upon, but the fact that Jefferson had the option to support the joint ballot model for selecting a chief executive and instead chose to grant said power to the lower house alone sets the constitution he drafted for Virginia apart from that of Georgia in a very important way. By dividing the General Assembly into an upper and lower house, Jefferson evidently endorsed the utility of bicameralism. The Senate that he described was accordingly vested with legislative responsibility coequal with of the House of Representatives, save for the latter’s sole power to draft “bills for levying money.” Granted, the Senate’s members were also to be appointed by the lower house, but Jefferson at least seemed to believe there was a role to be played by an upper house whose perspective on most legislative issues was worth taking account of. By then disregarding this same body’s input in the selection of Virginia’s chief executive, Jefferson was effectively making a statement about the importance that he attached to the various responsibilities and powers his home state’s government was to possess. An appointed, and thus somewhat distant, Senate had a role to play in the making of Virginia’s laws and the debates that resulted, yet it could not help to decide how to spend the people’s money or take part in the selection of their head of state. Jefferson, it seemed, considered these prerogatives too important to vest in a body that wasn’t directly responsible to the voting public. Georgia may have followed suit in terms of how certain elements of its government functioned, but the decisions that were made along the way and the logic that guided them were different. This is important to take account of, and consequently sets the two documents (Georgia’s 1777 constitution and Jefferson’s draft for Virginia) apart in spite of whatever outward similarities they may possess.

Draft Constitution for Virginia, Part IV: the Past, as Prologue

Unlike his provisions for altering the franchise, the reforms that Jefferson proposed in his draft constitution for Virginia that outlined the responsibilities possessed by lower house of the General Assembly and the chief executive, respectively, represented a profound – and no doubt deliberate – break with established colonial precedent. Whereas under the 1619 colonial charter the House of Burgesses enjoyed legislative power in par with that of the Council of State but was subject to the veto of the appointed Governor, Jefferson’s House of Representatives was a far more dominant entity whose prerogatives extended into every major branch of government in Virginia. In addition to being popularly elected – or perhaps precisely for that reason – the lower house of the General Assembly was responsible for appointing members to the Senate, appointing the chief executive (referred to as the “Administrator” rather  than the Governor) and his deputy, appointing the members of the Privy Council (an advisory body not unlike a cabinet), selecting Delegates to attend the Continental Congress, appointing the state Treasurer and Attorney General, and appointing justices to the Court of Appeals (in effect the state’s Supreme Court). Added to the fact that Jefferson intended to take veto power out of the hands of the executive branch, the House of Representatives he proposed in his draft constitution represented far and away the most vigorous branch of the new state government. Indeed, he seemed ready to place a great deal of trust in the deliberations of that body and was evidently not at all prepared to offer many formal restraints against it.

The office of Administrator, meanwhile, was to possess only the palest shadow of the powers previously reserved to the Crown-appointed Governor. After first stating that, “The Administrator shall possess the power formerly held by the king: save only that, he shall be bound by acts of legislature tho’ not expressly named,” Jefferson’s draft constitution listed a number of significant areas in which the authority traditionally afforded to the executive in British Parliamentary government would not be possessed by its equivalent in Virginia. The Administrator, it declared, “Shall have no negative on the bills of the Legislature [,]” and further lacked the power to dissolve, prorogue, or adjourn either the upper of lower house of the General Assembly, declare war or conclude peace, issues letters of marque (to authorize privateers), raise armed forces or authorize the building of naval vessels or fortresses, coin money, regulate weights and measures, establish, “courts, offices, boroughs, corporations, fairs, markets, ports, beacons, lighthouses [or] seamarks [,]” lay embargoes for longer than 40 days, pardon crimes or remit fines, or create or grant dignities or titles. “These powers,” the draft constitution concluded, “shall be exercised by the legislature alone [.]” Unlike the legislative lower house, which he seemed to trust implicitly to shoulder the lion’s share of the burden of governing, Jefferson seemed loath to grant the head of state of his proposed government any power at all. Indeed, gazing once more upon the cavalcade of responsibilities he intended expressly to deny the Administrator, one is forced to wonder why he felt the need to maintain a chief executive at all. The inspiration for this radical rebalancing of Virginia’s government was likely rooted in Jefferson’s understanding of both British and American history.

As discussed in week past, the English philosophers and political commentators who had proven particularly influential among the political classes in the American colonies through the 17^th and 18^th centuries had generally been supportive of increasing the power of Parliament while decreasing the ability of the monarchy to exercise increasingly arbitrary prerogatives. The events of the English Civil War (1642-1651) and the Glorious Revolution (1688-1689) in particular had exposed and reinforced a strain of thought and activism in England centered on protecting the established rights of the people in opposition to the machinations of self-interested parties within the financial and ministerial elite. This tradition of resistance to political centralization and absolutism flourished under a number of different labels – the Commonwealth men and the Country Party being perhaps the most notable – and existed under the general umbrella of Whigism (signifying a dedication to constitutional monarchy). American colonists who absorbed the lessons of this intellectual and political movement doubtless found their resulting suspicion of centralised authority powerfully and unambiguously confirmed by the events of the 1760s and 1770s.

During this time both Parliament and the Crown proved unsympathetic to the cries of activists and statesmen in British America for the preservation of the privileges they had grown accustomed to and the rights that English history and English philosophy had taught them were their birthright. In light of the particular role played by the British Crown in this conflict – evidenced in part by the lengthy list of grievances offered against George III in the preamble to the Declaration of Independence – it is far from surprising that many among the first batch of American state constitutions severely weakened the authority and responsibilities of their respective chief executives. As stand-ins for the former royal (or proprietary) governors, who were in turn stand-ins for the British monarch, post-independence state governors (or presidents, or administrators) effectively embodied the unchecked power that the American Revolution was in many ways a direct response to. By weakening the executives compared to their colonial predecessors, the authors of said constitutions no doubt intended both to prevent future instances of intractable conflict between different branches of the same government while also giving tangible form to their philosophical objections to political absolutism. Jefferson’s decision to empower the lower house of the Virginia General Assembly in his own draft constitution was no doubt very much in this vein.

At the same time, the Sage of Monticello was also more than likely influenced by the specific history of Virginia’s colonial government. As discussed previously, the relationship between the House of Burgesses (elected by the people) and the Governor (appointed by the Virginia Company or the Crown) had at times been somewhat less than harmonious. Sir William Berkeley, Royal Governor of Virginia from 1642 to 1652 and 1660 to 1677, proved particularly unpopular during his second term for failing to respond to frequent Native American attacks on the colony’s western frontier while also preventing citizens from pushing further into the unsettled interior. These actions, or lack thereof, earned him the ire of plantation owner and statesman Nathaniel Bacon and his supporters in the General Assembly; the former responded in 1676 by leading an unauthorized war party to attack and destroy a Susquehannock village to the south, while the latter implemented a parcel of reforms that weakened the power of the Governor and enfranchised landless freemen. When Bacon returned to the colonial capital at Jamestown with a posse of 500 armed men to demand a militia commission the stymied Berkeley refused, and after a tense standoff that lasted for several months the city was summarily burned to the ground. It was only Bacon’s sudden death from dysentery that allowed Berkeley to regain the momentum he required to put down the rebellion before the arrival of British naval assistance. In the weeks and months that followed the various reforms that Bacon’s legislative supporters had pushed through were reversed or nullified, and Berkeley himself was recalled by the Crown.

As this episode demonstrates, conflict between the most representative and least representative branches of the government of Virginia was not wholly endemic to the period immediately preceding the American Revolution. Bacon’s Rebellion, as it became known, represented a violent collision of the interests nurtured by the House of Burgesses and the Governor, respectively. The elected Burgesses, responsible to the land-owning public, understandably sympathized with calls for a forceful response to Native depredations as well as a general campaign of territorial expansion. Governor Berkeley, responsible solely to the British Crown, was conversely more interested in expanding and diversifying the colonial economy than aggravating local Native tribes or bending to the whims of the land-hungry planter class. However self-interested the motivations of Bacon and his political supporters in the ensuing conflict may have been, they enjoyed a degree of popular legitimacy (by contemporary standards, at least) that Berkeley did not. This fact, along with the reforms passed by the House of Burgesses in response to Bacon’s acts of defiance, serves to reframe what was ostensibly a disagreement about economic priorities as a conflict over the fundamental question of where in a government like colonial Virginia’s ultimate authority rested, with the people, or with those assigned to rule over them?

Without in any way denigrating Jefferson’s knowledge of Bacon’s Rebellion, or indeed any aspect the history of his home country, it is perhaps worth mentioning that there was a much more recent example of conflict between legislative and executive authority in Virginia that he likely drew upon when drafting a new constitution. The final Governor to be appointed by the Crown, John Murray, 4^th Earl of Dunmore (1730-1809), demonstrated over the course of his brief tenure in office (1771-1775) a particularly strong resistance to the claimed prerogatives of the elected House of Burgesses. Though he managed to avoid repeating at least one of his predecessor Berkeley’s mistakes by authorizing a series of campaigns against the Native inhabitants of Virginia’s western frontier, his relationship with the House of Burgesses and his reaction to some of his subjects’ proto-revolutionary activities resulted in the unfolding of a dangerously intractable conflict.

By March of 1773 Dunmore had managed to govern for over a year without once consulting the House of Burgesses, and at that point deigned to call them into session only in order to gain approval for a planned military expedition into the Ohio Valley. Rather than dutifully acquiesce, the assembled delegates instead began procedures to communicate their concerns to the Crown about certain pieces of legislation approved by Parliament that appeared to violate the rights and privileges traditionally afforded to the American colonies. Dunmore responded by first dismissing the General Assembly, and then, when a number of the Burgesses met at the nearby Raleigh Tavern in Williamsburg to continue their work, by dissolving the lower house outright. When the stymied burgesses persisted by forming a parallel government (the Second Virginia Convention) and electing delegates to the Continental Congress that was to meet in Philadelphia, the colony’s increasingly irrelevant governor issued a proclamation against participating in any such unsanctioned assemblies. When this, as did his other responses, proved ineffective, Dunmore attempted to curtail a potential armed uprising by authorizing a force of British Royal Marines stationed in Williamsburg to remove the gunpowder stored at the local magazine for use by the militia.

From that point (April 20^th, 1775) forward, the accustomed relationship between the legislature of Virginia and its legally-recognized governor essentially disintegrated. Chased from the Governor’s Palace, and then from his hunting lodge, by elements of the colonial militia loyal to the rebellious Convention government, Dunmore took refuge aboard the HMS Fowey anchored in the York River. Thereafter he directed numerous raids against plantations along the James and Potomac Rivers, and in November, 1775 issued a proclamation guaranteeing freedom to any slaves who managed to escape their rebellious masters and agreed to take up arms in British service. After giving orders to burn the waterfront of the city of Norfolk on New Year’s Day in 1776, Dunmore departed for New York, and from there left for Britain in July once it became clear to him that Virginia was well and truly lost to royal authority. In spite of the Virginia Convention’s insistence that by boarding a British warship in June, 1775 he had effectively resigned his post, he continued to receive his salary as Governor until the Treaty of Paris formally ended the Revolutionary War in 1783.

Though the conflict that unfolded between Lord Dunmore and a segment of the Virginia political class in the years immediately preceding the Revolutionary War was in many ways more vivid and possessed a greater long-term significance than Governor Berkeley’s quarrel with Nathaniel Bacon, the fundamental disagreement at the root of both was essentially the same. Dunmore, like Berkeley, was appointed by the British Crown to serve as the Governor of Virginia. Because, in the 1660s as well as the 1770s, the Crown was recognized by Virginians as the sole, sovereign executive authority in the British Empire, this granted the Crown’s representative in the colony a degree of legal legitimacy as well as a host of formal prerogatives. The House of Burgesses – again, in both instances – was the popularly elected branch of the colony’s General Assembly. It’s authority to define law and levy taxes had been established by a Royal Charter and reinforced by decades of sustained practice and precedent. These things – a form rooted in codification and a record of practical experience – likewise served to grant the lower house its own form of legitimacy and actual, tangible authority. The fact that the respective legitimacies of the Burgesses and the Governor possessed different philosophical origins – the sovereignty of the people vs. the sovereignty of the royal person – did not necessarily place them in conflict with one another, so long as they both nurtured the same basic priorities and possessed a mutual respect for each other’s authority. The moment this stopped being the case, however, it was not clear, in the 17^th as well as the 18^th century, which body should give way to the sovereignty of the other – essentially, whose claim to legitimacy was stronger.

Berkeley and Dunmore both seemed inclined to view the authority possessed by the office they occupied as being superior to that claimed by the elected House of Burgesses. When Berkeley refused to bow to the priorities of the landed political class by vetoing territorial expansion beyond the colony’s western frontier, he no doubt believed that he was acting in favor of what the Crown perceived as Virginia’s proper place in the larger empire. When Bacon’s supporters in the House of Burgesses subsequently attempted to restrain the authority of the Governor’s office they effectively made known their own perspective on the matter, that the chief executive of Virginia should by right be beholden to the representatives of the general population. There was no formula in existence intended to help resolve this kind of dispute, and the result was an armed rebellion that led to the burning of the colonial capital and ended only when the leader of the revolt expired from an unrelated illness.

Lord Dunmore, nearly a century later, seemed to regard the prerogatives claimed by the House of Burgesses with a greater degree of intransigence than his 17^th predecessor, though the conflict that thereafter emerged was located along the same basic fault lines. As Governor of Virginia, Dunmore possessed the legal power to prorogue, dismiss, or dissolve the General Assembly, as well as the right to command the militia and seek instruction or aid from the authority that had appointed him (in this case the British Crown). Arguably, until he began to authorize attacks against civilian plantations from his headquarters aboard the Fowey, none of the actions he had undertaken to quash the incipient rebellion slowly coalescing in Virginia had been either illegal or beyond his remit as Governor. The Burgesses meanwhile claimed that all of their actions taken in defiance of Dunmore’s authority were justified and legitimated by their status as the elected representatives of the people of Virginia. In this there did seem to be some logic; presumably the lower house of the General Assembly had been made an elected body in 1619 and granted certain specific powers because it was believed by the directors of the Virginia Company that the people resident in the colony were rightfully responsible for some portion of their own governance. Leaving the form of Virginia’s government unchanged when the colony was “adopted” by the Crown in 1624 seemed to imply that the British monarchy did not disagree with this assessment. As proven in the case of Berkeley and Bacon, however, the perpetuation of the relationship established between Burgesses and Governor by Virginia’s charter did not easily withstand obstinacy on both sides of the equation. Dunmore and his opponents both claimed to represent the sole legitimate authority in Virginia, and both arguably had codified law and precedent on their side. There were no procedures in place to resolve a dispute of this nature, in spite of the experience of 1676, and the result was nothing short of a war between the people of Virginia and their legally-recognized Governor.

Draft Constitution for Virginia, Part III: Innovation

            If there are aspects of Thomas Jefferson’s 1776 draft constitution for Virginia that appear similar to, if not quite the same as, the government framed by the 1619 colonial charter, there are almost certainly good reasons for it. Never a needless innovator, the Sage of Monticello likely felt he had no reason to change what already worked; or, barring that, he maintained certain existing structures or concepts because he felt some degree of familiarity would aide his program’s acceptance among the general population. If the abundant differences between the two are any indication, however, there were also many things about the existing colonial government that Jefferson sought to alter or remedy in his 1776 proposal. Some of the alterations to the established formula that he offered appear rooted in republican philosophy, while others seem to take their inspiration from recent history, general pragmatism, or some form of populism. Regardless of what motivated the innovations Jefferson brought to bear, however, it is the way he combined them into a fundamental governing document that speaks to the unified social and administrative rationale he hoped to imprint upon his home state.

            But before any unified visions begin to reveal themselves, one must first attempt to pick out and dissect the various elements of Jefferson’s draft constitution that bespeak significant innovation. The first that leaps to mind, perhaps because it represents the most important way his fellow Virginians were going to interact with the government he proposed, is the electoral franchise. The colonial charter of 1619 makes no mention of what qualified a person to vote in the election of members of the House of Burgesses. All that it states, with admirable concision and/or frustrating ambiguity, is that the lower house of the General Assembly shall consist of, “Two burgesses out of every town, hundred, or other particular plantation, to be respectively chosen by the inhabitants [.]” In practice, every freeman in the colony (being neither a slave nor an indentured servant, and excluding women) almost certainly possessed the right to vote prior to 1670; after that time only men who owned property enjoyed the use of the franchise. This provision was briefly reversed in 1676 when devotees of the aforementioned Nathanial Bacon took control of the House of Burgesses and restored the vote to landless freemen, and then reapplied by the colonial elite once Bacon’s attempted revolt had been soundly crushed. In 1684 a further refinement of electoral law decreed that tenants possessing land under the terms of a lifetime lease also enjoyed the right to vote, and in 1736 the House of Burgesses determined that an individual needed to own at least 100 acres of unimproved land or 25 acres of improved land for one year prior to an election to be eligible to vote.  

            By 1776 some form of property qualification had thus been operating uninterrupted for almost exactly a century, and had left its mark on the character of Virginia’s political culture. In spite of the fact that a certain percentage of the colonial population were excluded from voting either because of their legal or financial status, many Virginians in the latter 17^th century had come to think of their society as remarkably egalitarian. Unlike in the Britain of their forebears, wherein the aristocracy, the Crown, and the church between them controlled the largest share of arable land, the percentage of Virginians who owned no property at all was relatively small. Though not an altogether false assertion in the 1670s and 1680s, the perpetuation of this view masked the increasingly divided nature of Virginia’s population in the second half of the 18^th century. Land ownership may have been the norm in the late 17^th century, when continued migration into the colony was considered an economic priority, but natural population growth and finite total acreage doubtless wrought their effects on the size of the landless population.

            In 1700, about 60,000 (Black and White) people lived in Virginia, and altogether the colony claimed most of the land within the borders of the modern state (about 40,000 square miles). In spite of this apparent expanse of territory out of which future generations could carve homesteads for themselves, settlement was sparse beyond a western frontier extending roughly south from present-day Augusta County to Pittsylvania County. Consequently, only about 26,500 square miles were available for unrestricted habitation as of 1776. To this statistic it must be added that by 1770 the population of Virginia had expanded to just short of 450,000. Accepting that approximately half this number represented the slave population, the number of White residents in the colony, all at least potential voters, had still expanded significantly in the seventy years since the dawn of the 18^th century unaccompanied by a commensurate growth in claimable territory. During these seventy years, what land was available was doubtless steadily swallowed up by new arrivals or the purchases of the wealthy, the latter resulting at times in the creation and growth of large plantation estates worked by hundreds of African slaves (thus accounting for their accompanying population growth). Because the descendants of these landowners were quite often left without property by the operation of inheritance laws based on primogeniture, and because the total amount of free land to be claimed had been steadily shrinking, it stands to reason that the percentage of the Virginia population in 1776 that were landless but free had expanded as well, to a percentage of the total somewhat higher than earlier generations might have imagined. This would inevitably effect the operation of the franchise, creating an “underclass” of sorts who were legally free but excluded from the political process.

            Jefferson’s solution to this likely unintended political segregation was not as radical as some of the other innovations he offered in his draft constitution, though it surely would have wrought significant changes on Virginia’s political culture. In a section of his draft constitution concerned primarily with the operation of the Virginia legislature, Jefferson decreed that,

All male persons of full age and sane mind having a freehold estate in [on fourth of an acre] of land in any town, or in [25] acres of land in the country, and all persons resident in the colony who shall have paid scot and lot to government the last [two years] shall have right to give their vote in the election of their respective representatives.

For reference, “freehold” simply refers to immovable property (land and any structures or vegetation on it) that is owned for a period of time not determined or circumscribed by any contract or agreement (such as a lease), while “scot and lot” was a tax on householders originating in the medieval period that in some English jurisdictions entitled the payee to vote in elections. By including a property qualification on the franchise in his proposed plan for Virginia’s first state government, Jefferson perhaps hoped to preserve an existing norm in another attempt not to upset the applecart entirely amidst a generally radical program of reform. At the same time, however, he did not propose to leave the established franchise laws untouched or un-augmented. Indeed, his proposed constitution seemed intent on simplifying and relaxing existing electoral regulations, to the benefit of the (free) population of Virginia. Rather than having to possess 100 acres of unimproved or 25 acres of improved land, in either case constituting a significant personal expense, he intended to allow residents to vote with only 25 acres of (presumably) any sort of land in the country, or a fraction of that (1/4 acre) in any town. And for those who possessed no land at all, he intended for the payment of a householder tax to suffice as qualification for the franchise. These deviations from established precedent, moderate and yet substantive, were no doubt a function of both pragmatism and principle.

            On one hand, Jefferson was doubtless aware that the growth of Virginia’s population had both decreased the amount of purchasable land per capita and increased the number of people living in large urban areas. For this expanded urban population the purchase of the large tracts of landed defined by existing franchise law was likely neither practical nor desirable, yet they were essentially punished for not doing so by being excluded from the political process. In 1776, amidst much spirited talk of rights, representation, and responsibilities, this was likely seen as an increasingly untenable status quo. At the same time, being throughout his career something of a populist, the Sage of Monticello no doubt wished to increase the ability of the population of his home state to participate in the proceedings of the government that most affected their everyday lives. As the events of the 1760s and 1770s had effectively proven, governments were most capable of descending into tyranny when the people whose existence they were responsible for had little input into how they functioned and even less ability to provide viable oversight. By increasing the number of people to whom at least the legislature of Virginia was directly responsible – by granting the electoral franchise to small property-holders and tax-paying residents in towns – Jefferson no doubt hoped to ensure that the administration of his native country never degenerated into the parody of responsible, representative government that many contemporary Americans believed the British Parliament had become.

Draft Constitution for Virginia, Part II: Continuity

Before immediately diving into an examination of Thomas Jefferson’s draft of a new state charter for Virginia, a word or two about the significance of written constitutions. As discussed previously, the importance that Revolutionary Americans attached to the notion of clearly and explicitly codifying their paramount laws marked them as somewhat unusual in the context of the 18^th century. There were, as of 1776, no countries in existence that possessed written constitutions. Great Britain, for better or worse the state that exerted perhaps the greatest influence on American culture, philosophy, and politics, was in fact possessed of a famously unwritten constitution – said to encompass all of the statutes then in force from the Magna Carta (1215) to the Bill of Rights (1689). There were certainly a handful of specific documents that carried particular weight, whose written clauses were referenced time and again over the course of Britain’s at-times tumultuous political history (the two aforementioned chief among them). Nevertheless, the notion of drafting a set of fundamental laws, in fact a framework of government, was most definitely not a part of the Founder’s British cultural heritage. Nor was it a function of their common regard for, and knowledge of, classical antiquity. Though elements clearly derived from the unwritten constitution of the Roman Republic found their way into the governing charters of many states, the manner in which the government of Ancient Rome functioned was more a consequence of accumulated custom and precedent than any clear and consensual administrative plan. Though the influence of classicism, and in particular classical republicanism, undeniably shaped the political sensibilities of Revolutionary Americans, their determination to provide a tangible foundation for the political life of the nascent United States is best traced to another source.

Indeed, the most likely inspiration for 18^th century American constitutionalism would seem to be the colonial charters by which the original Thirteen Colonies were governed. Unlike their British brethren, who lived and worked under the auspices of a government defined mainly by tradition and precedent, colonial Americans had grown accustomed to, and even came to depend on, the written charters that framed their respective governments. Said charters had varied origins, and very different compositions, but all served to provide a clear and relatively unambiguous legal framework by which, say, Massachusetts, or New York, or Georgia, were administered. Several incidents that pre-date the Revolution speak to the importance colonial inhabitants consequently attached to these documents. In 1686, when the government of James II (1633-1701) attempted to combine several colonies along the eastern seaboard of North America into the so-called Dominion of New England, the newly-appointed governor of the amalgamated polity, Sir Edmund Andros (1637-1714), set about collecting the various colonial charters which he felt were no longer in force. When Andros arrived in Hartford, in the Connecticut Colony, and demanded that the colony’s 1662 charter be turned over, the document is said to have been spirited away and hidden in the hollow of a venerable old Oak tree by one Joseph Wadsworth. The tree in question subsequently became known as the Charter Oak (whose remains, once felled by a storm in 1857, were used to construct the desk of the Governor of Connecticut). Whether this story represents a faithful account or a something more like a folk legend is arguably immaterial. The citizens of Connecticut believed it to be true, and celebrated the defiance of royal authority that the tale embodied. This speaks to the value they in turn attached to the charter itself and the need their perceived to protect it from unilateral abrogation.

A similar, though more recent, incident likewise speaks to the common perception of importance that the American colonial charters possessed. When, in 1773, members of the Massachusetts-based Sons of Liberty engaged in an act of civil protest by absconding with and destroying East India Company tea, the British Parliament reacted by passing a series of punitive legislation that became known as the Intolerable Acts. Among these draconian measures was the Massachusetts Government Act (1774), the substance of which effectively stripped the colony of its 1691 charter and placed it under the near-total authority General Thomas Gage (1719-1787). Contemporary British thinking was that the existing government of the Province of Massachusetts Bay was no longer tenable amidst a climate of simmering insurrection because it gave far too much freedom to local government – thus why the practice of holding town meetings, long a staple of Massachusetts political life, was severely curtailed. Colonial residents were understandably alarmed by this unambiguous abrogation of their accustomed form of government, and reacted by declaring the contract between themselves and the Crown null and void and further establishing an alternative legislature to govern all areas outside of Gage’s control. Worth noting in this instance is the manner in which the people of Massachusetts perceived their governing charter as compared to the way Parliament understood its significance.

 If Gage’s appointment was any indication, the British ministers responsible for the Massachusetts Government Act believed that the colony remained under the authority of the Crown regardless of the status of its written charter. To them, it seemed, the charter was not what tied Massachusetts to Britain, but rather served as the codification of something which was somehow fundamental or transcendent. Those responsible for the creation of the Massachusetts Provincial Congress, which governed the colony until the adoption of a state constitution in 1780, conversely seemed to take the view that their colony’s charter was itself the instrument of union between Massachusetts and the Crown. By nullifying it, rather than modifying its contents or providing for an appropriate replacement, they held that Parliament had consequently nullified any formal connection between the colony and its mother country. As with the story of Connecticut’s Charter Oak, this incident speaks to the significance colonial Americans attached to the physicality of their fundamental laws. A constitution was to them not merely an ill-defined collection of statutes and traditions, but a tangible, codified compendium of rights and privileges, rules and regulations. Doubtless this attachment to written charters combined with a regard for the great documents of state that formed the British Constitution to produce a people that, by 1776, had become comfortable with locating and defining their rights and their laws in a written form.

Keeping this characteristic in mind, whereby colonial Americans possessed strong attachments to the written charters under which they were governed, it should perhaps come as little surprise that Jefferson’s 1776 draft constitution for Virginia contains several elements that appear to have been lifted directly from that colony’s own charter. Some of these elements were little more than aesthetic. The name that Jefferson suggested in his draft for the legislature, composed of an upper and lower house, for instance, was the “General Assembly of Virginia.” The Company ordinance that established representative government in the colony in 1619 applied the same name to the combined House of Burgesses and Council of State. Though in practice they two were very different entities, operating under different rules and performing subtly different functions, the use of the accustomed name in 1776 seems to imply at least an attempt to promote a sense of continuity. This appears particularly likely given how much other aspects of Jefferson’s proposal diverged from the existing colonial government. Perhaps in an attempt to ease public reception of the many (and at times radical) changes to their governing charter he deemed necessary, the Sage of Monticello determined that some degree of familiarity was called for. Then again, maybe Jefferson simply felt, for the same reasons as the Company directors in 1619, that the “General Assembly of Virginia” was as apt, attractive, or merely practical name for the legislative branch of government. This possibility carries a connotation of its own, that Jefferson was not interested in innovating simply for the sake of innovation. Though a radical thinker in more ways than one, he was at once no enemy of pragmatism; if the status quo appeared to suit his needs, he was not one to offer change for no other reason than to put his stamp on things.

This rational approach perhaps also guided Jefferson’s adoption of a bicameral legislative model for his draft constitution. As aforementioned, the General Assembly he proposed contained two distinct bodies, a House of Representatives and a Senate. Each possessed a different membership, were elected by different means, held their members to different terms in office, and enjoyed different responsibilities. The colonial charter of 1619 outlined a similar set of provisions for the House of Burgesses and the Council of State, with Jefferson’s revisions mainly introducing stronger democratic procedures into the arrangement. The Council of State, for example, was a solely appointed body whose members were chosen by the directors of the Virginia Company (or after 1624, the British monarch). Their purpose, as the charter described it, was to, “Chiefly be assisting, with their care, advice, and circumspection, to the said governor [.]” Though this would seem to paint the Council as a mainly advisory body, the charter also declared that, as a component of the General Assembly, the councillors were also expected to engage in a process whereby, “All matters shall be decided, determined, and ordered by the greater part of the voices then present [.]” This would appear to indicate that the Council of State was intended to possess a deliberative character as well, similar to a legislative body. 

Jefferson’s proposed Senate – his upper house in the General Assembly – was conversely to be appointed by the members of the House of Representatives, and was to possess the power to, “Originate and amend bills [.]” Granted, it may not seem as though shifting the appointment of the upper house from one body to another while keeping the popular voice effectively sidelined smacks of democracy. Nevertheless, the logic behind Jefferson’s method of selecting Senators at least introduced a modicum of popular input where none had existed before. The people of Virginia may not have been able to directly elect Senators under the scheme he proposed, but at the very least they elected the people that appointed them in turn. Under the 1619 charter, modified in 1624, appointment of councillors was left first to the distant, unelected, and likely ill-known directors of the Virginia Company, and thereafter to the equally distant reigning monarch. In a similar move toward greater popular accountability, Jefferson also mandated in his draft constitution that only the House of Representatives possessed the power to propose and modify, “Bills for the levying of money.” This is a practice common to many modern forms of Westminster-style bicameralism (as in the Parliaments of Canada and the United Kingdom, for example), but which was lacking from Virginia’s 1619 charter. Indeed, said document made no mention of any differences that might have existed between the respective powers of the House of Burgesses and the Council of State, save that the latter was to closely advise the Governor.

By placing the exclusive right of determining appropriations in the hands of the popularly elected lower house, Jefferson doubtless intended to ensure that the connection between the citizens of Virginia and the body that was responsible for spending their money was clear and unambiguous. This likely indicates, among other things, that he was dissatisfied with the distribution of legislative responsibility under the existing charter government, and also that he believed his fellow Virginians would not object to a slight augmentation of lower house authority at the expense of the upper house. Much the same could be said of his aforementioned determination to replace the Crown-appointed Council of State with a somewhat more accountable Senate. Admittedly, this latter change could be quite logically chalked up to a simple acknowledgement of the changing status quo; separated from Virginia, the British monarch would no longer be in a position to appoint members of the upper house. That being said, Jefferson could have just as easily shifted appointment power to the office of Governor (the occupant of which customarily consulted with the Crown on appointments to the Council). The fact that he instead decided that members of the Senate were to be chosen by the popularly elected representatives of the people of Virginia again indicates his desire to establish a clearer line of accountability between governors and governed under his proposed state constitution than existed under the colonial charter.

For all his innovations, however, it is noteworthy that Jefferson chose to maintain the bicameral character of the General Assembly of Virginia that the charter government first established. In spite of how common bicameralism is in the modern context, particularly in the United States of America, it was certainly not the only form he could have chosen for the legislature of his home state. The contemporary Constitution of Pennsylvania, written in part by Benjamin Franklin, vested legislative authority in a popularly elected unicameral assembly rather than divide responsibility between two different bodies. This was certainly an uncommon choice among the original thirteen states – indeed, no other among them followed Pennsylvania’s example. Nevertheless, the fact that it occurred to some 18^th century Americans that unicameralism was an option indicates that Jefferson indeed made a choice when he drafted a bicameral constitution for Virginia. The logic behind this choice was likely practical as well as philosophical.

The essential rationale behind bicameralism is that it introduces an element of balance to the legislative process. Rather than rely on the deliberations of a single body of lawmakers to debate and set policy – a body in which all members were elected by the same means and could be said to possess at least a broadly similar perspective – a bicameral assembly harnesses the views of two bodies of different composition in order to (in theory) fuse some of the ambitions of group A with the concerns of group B. If the approval of both chambers is required for any and all legislation to pass into law, moderation becomes (again, in theory) the guiding principle if either group A or group B wishes to accomplish anything of substance. While bicameralism was not a significant feature of the ancient republics that so many among the Founding Generation studied and venerated, the concept of balanced government certainly was. The unwritten constitution of the Roman Republic, convoluted though it was, represented an attempt by the political classes to play the opposing interests of existing social orders against each other as a means of ensuring no one faction within the republic could dominate any other. Regardless of how successful (or not) this strategy proved in the long run, the basic notion of balanced government was an aspect of classical republicanism that 18^th century reformers and Enlightenment devotees heartily grasped and frequently promoted.

It is a matter of debate whether it was a desire for administrative equilibrium that in 1619 motivated the directors of the Virginia Company to erect a bicameral structure in the North American colony in their charge. Likely as not it was simply a practical expedient; a popularly elected assembly was attractive to potential settlers, while an appointed council provided a degree of Company oversight. That being said, the result represents an admirable model of balance in government, fusing the needs of the actual residents of Virginia with the concerns of the stockholders whose private enterprise they were taking part in. When the Crown took over administration of Virginia after 1624 this balance was preserved by simply slotting the monarchy into the space previously occupied by the Company and its officers. Jefferson’s proposal in 1776 entailed essentially continuing the established legislative structure while substituting yet another interest in place of the Crown. He attempted to ensure the viability of such a measure by clearly differentiating between the upper and lower houses in terms of how their members were chosen and how long they served in office. Representatives were to be elected yearly by the voting public, ensuring that they had always to consider the needs of their constituents lest they promptly and summarily be given the electoral boot. Senators were conversely to be appointed by the lower house for three year terms. This effectively served to separate them from the popular will and promote long-term thinking (planning three years ahead instead of one year ahead). While this arrangement was certainly more democratic and more transparent than that which existed under Virginia’s colonial charter government – substituting the concerns of actual residents whose powers were clearly circumscribed for the desires of absentee stockholders and hereditary sovereigns whose authority was often rather ill-defined – the fundamental logic behind it was essentially unchanged.