Friday, March 11, 2016

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 17th 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 18th century. Land ownership may have been the norm in the late 17th 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 18th 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.

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