Friday, April 29, 2016

Draft Constitution for Virginia, Part X: Property, and its Implications

            Demonstrating once more that he held no cows to be sacred – at times even in the face of his own rational self-interest – Thomas Jefferson also included provisions in his draft constitution for Virginia that would have trifled with the ownership of what was likely the single-most coveted commodity in colonial America: land. In a society dominated by agriculture and economically dependent on its own ability to produce large quantities of certain high-value crops, arable land was widely viewed as the key to both economic well-being and individual self-sufficiency. Additionally, because the franchise in many colonies was qualified by property ownership (measured in acreage or tax value), owning a given quantity of land was also the gateway to political participation. The middling Virginia tobacco farmer and the yeoman homesteader in western Pennsylvania alike could thus trace whatever prosperity they enjoyed to their status as landowners, as could some of the wealthiest families in America whose vast plantations and agricultural estates were objects of pride and envy. Attempting to alter the manner by which property in 18th century America was owned, distributed, sold, or inherited therefore entailed potentially effecting the lives and livelihoods of people from across a wide swath of different social and economic strata. Jefferson’s draft constitution for Virginia betrays an evident intent to do just that within the confines of his home country, to the end of addressing several of his own moral and philosophical concerns.

Before going any further, however, it would perhaps be wise to take a moment and lay out a little background. Though it would surely take more time than any of us have to spare to adequately explore the history of land ownership in colonial Virginia, a few key concepts and facts will hopefully suffice for the present discussion. It would do well to note, for instance, that within the boundaries occupied by the colony as of the turn of the 18th century, Virginia (approx. 100,000 square miles) encompassed more land than the whole of Great Britain (approx. 94,000 square miles). Furthermore, whereas land in Britain was often wrapped up in feudal titles and monopolized by landlords, making it exceedingly difficult for anyone who didn't stand to inherit to hope of owning the earth over which they toiled, arable land in Virginia was both cheap and plentiful. For potential settlers this was – it has been abundantly recorded – an incredibly powerful incentive to migrate. Unfortunately for the average prospective migrant, however, land in Virginia was not simply “up for grabs.” The directors of the Virginia Company, who were solely responsible for administering the colony and disposing of its resources under a Royal Charter granted in 1607, set about capitalizing on the abundance of land and addressing the labour needs of plantation agriculture (i.e. tobacco) by putting in place what was known as the Headright system.

First authorized in 1618, this scheme approved the granting of a 50 acre parcel of land to every immigrant who paid their own way to Virginia, or to any investor who paid for their passage. New arrivals in the latter group were thereafter customarily required to sign articles of indenture for a period of five or seven years and work to clear and improve the land of their benefactor until their contract expired. Because of the relatively high cost of an Atlantic crossing, most immigrants brought to Virginia under the Headright system fell into this category. Unable to acquire land simply as a result of their arrival, they were forced instead to purchase homesteads further into the colonial interior – where conditions were less forgiving, Native raids were a common occurrence, and viable markets were very distant – once their term of service was up. Overall, however, the exchange of land for labour proved exceptionally beneficial for the financial health of the colony – and for its corporate masters in particular, land being so much cheaper than transportation fees. The system was, or course, not without its flaws. Potential investors and ship captains are known to have cooperated in claiming headrights for those who had paid their own way, or for more immigrants than had actually arrived in a given shipment. As a result of these abuses, as well as of the general preference the Headright system gave to those with wealth enough to subsidize the peopling of Virginia, land in the colony came to be concentrated through the 18th century in a fairly small number of hands. All the same, headrights continued to be granted following the re-charter of Virginia as a Crown Colony in 1620, and in time became the foundation upon which the wealth of many of the colony’s most prominent families was built.

The society into which Thomas Jefferson was born in the 1740s was very much the product of these earlier immigration and land-distribution policies. Estates built up during the 17th century had been passed down, subdivided, or enlarged, and the resulting class of large-scale landowners effectively dominated the social and political landscape. Seeking to fundamentally alter this rather rigid status quo, of which he was very much a beneficiary, the Sage of Monticello inserted into his 1776 draft constitution two specific clauses intended to address who owned land and what they were permitted to do with it. The first stated, following a sentence which declared that all forfeited or otherwise unaccounted for lands were to be appropriated by the state government, that,

Every person of full age neither owning nor having owned 50 acres of land, shall be entitled to an appropriation of 50 acres or to so much as shall make up what he owns or has owned 50 acres in full and absolute dominion. And no other person shall be capable of taking an appropriation.

While this perhaps doesn’t qualify as wealth redistribution, it certainly would have resulted in a fundamental reordering of Virginia’s economic and political status quo. Bearing in mind that the property qualification on the franchise that Jefferson described in his proposed constitution required the possession of only ¼ of an acre in town and 25 acres in the country, appropriations of the type described above would have potentially entitled any citizen who desired to claim their 50 acres the right to vote.

Furthermore, because Jefferson also declared in the same document that, “Every person so qualified to elect shall be capable of being elected,” the distribution of such parcels of land would likewise have resulted in a much greater percentage of Virginia’s population becoming eligible to serve in an office of state. The consequences of such an expansion – in terms of who could vote and be voted for – would doubtless have been considerable. Men customarily inclined by their circumstances towards deference to their social betters would have been permitted to exercise the same political rights upon the same terms as the wealthiest plantation owners. Those accustomed to public service as an accoutrement of their wealth may have consequently been forced to pay heed to the concerns of a much-enlarged voting public and thereafter cultivate their support via the promotion of certain policies or positions. This, combined with the potential influx of newly-landed men into the General Assembly, would inevitably have wrought significant change upon the nature of political discourse in Virginia, the issues most commonly discussed, and the social and economic perspectives in evidence. In all likelihood, this was what Jefferson intended.

As previously discussed, the Sage of Monticello often demonstrated in his writings an ardent desire to protect and promote the rights of the common citizen and ensure that government always fostered their ambitions rather than its own. Empowering the most responsive branch of Virginia’s General Assembly, as he attempted to do in his 1776 draft constitution, was one way to accomplish this. Rather than locate the seat of power in a singular, unelected governor, as had been the custom, it was instead to be distributed among the members of a lower house elected on a yearly basis. Because this in itself would have amounted to very little so long as the electorate itself and the slate of candidates remained unchanged, Jefferson also intended to ease the franchise qualification so that more Virginians could vote and receive the votes of others than ever before. His proposal to grant 50 acres to every citizen who desired it, or so much as to raise their lifetime total ownership to 50 acres, was very much in this same vein.

Even accepting that many potential claimants who owned land in excess of 25 acres but less than 50 would already have qualified for the franchise and to stand for office without any additional grants, there must also have existed – otherwise it would seem rather odd to even make the offer – a sizeable number of people living in Virginia who owned no land at all as of 1776. Their voices and perspectives were thus entirely unknown within the contemporary political scene, and their government almost completely ignorant of their needs, concerns, or convictions. These people – laborers, city-dwellers, and artisans, among others – would have been permitted to instantly join the political class by accepting a grant of land from the state, thus at a stroke vastly increase the ability of Virginia’s government to truly speak for the citizens it claimed to serve. In time, Jefferson likely hoped that these newly-landed individuals would abandon whatever instinct they possessed to defer to their social betters as land ownership and political participation became the norm rather than the exception. Able for the first time to engage in public service alongside the scions of some of Virginia’s wealthiest families, it no doubt seemed inevitable to the sage of Monticello that existing social barriers would gradually break down and give way to a far more egalitarian social structure than that which dominated the colonial era.

Granted, the distribution of land that Jefferson proposed in his draft constitution would not have altered the fact that certain families in Virginia were far wealthier than others. Nor would it have ameliorated all of the advantages, material and social alike, that said families enjoyed. But at the very least it would have served to narrow the gap between the “Haves” and “Have-Nots” in the Old Dominion, as well as potentially broaden the realm of public discourse and promote a stronger sense of political awareness among the general population. Being able to vote and stand for election where they hadn’t before, it’s likely that many Virginians would have been compelled to take a greater interest in the affairs of state that now formed a part of their responsibilities. The emergence of a new political class – of small-scale farmers, workers, and artisans of limited means or education – would accordingly seem to be a potential result of this expansion of the public sphere, though it’s hard to say if this was Jefferson’s intention.

In spite of his lifelong advocacy for the prerogatives of the common citizen, Thomas Jefferson’s opinion of the suitability of the average American to hold political office was decidedly mixed. Like many of his contemporaries among the Founding Generation, the Sage of Monticello nurtured the underlying assumption that public service was the preserve of a certain class of men – customarily defined by their education, character, and wealth – who were best suited them to the pressures and concerns of “great matters of state.” While he may have been willing to expand this criteria of suitability to more generally include those who owned land in their own right, in was only in later life that he began to support universal male suffrage as the basis of political participation. Though much of the rhetoric he deployed and many of the policies he endorsed did seem intent on actively empowering the average, uneducated, middling citizen, it nonetheless represents a potential misunderstanding of Jefferson to conclude from the above-quoted passage that he was unreservedly in favor of seeing butchers, shop-keepers, and frontier homesteaders striding about the halls of power. Or perhaps it might be fairer to say, in light of the property qualifications his draft constitution embraced, that he would have been willing to see the butcher or the shopkeeper take their place in the General Assembly, but only once they had proven their responsibility, independence, and investment in the community by becoming landowners.

Key to understanding this somewhat rigid attachment to property – and in turn the logic behind some of the provisions included in his draft constitution for Virginia –  is Jefferson’s conception of what constituted an ideal republican citizen, the importance of personal autonomy and independence, and the theoretical root of individual virtue. The ability of a republic to survive the tumults of popular rule while staving off corruption, Jefferson argued, lay in the virtue of the individual citizen, and in their willingness to hold their ministers to account and guard against the wanton abrogation of certain fundamental rights. This virtue could best be guaranteed only if those whose sovereignty was the basis of republican government – the voters – were free from trifling dependencies or attitudes of deference that might otherwise warp or distort their intentions. A shop-keeper in New York who owed money to a Boston merchant, say, or a tenant-famer in Virginia whose meagre prosperity was owed to the benevolence of his landlord were thus ill-suited, in Jefferson’s opinion, to exercise the political responsibilities the public sphere demanded of them. Only someone who owned the land from which they drew their livelihood could be trusted to enjoy the full and free exercise of their judgement. Furthermore, because the personal prosperity of a landowner was directly tied to their property, and because that property formed an immovable part of a larger community, it thus seemed quite clear to Jefferson that owning land demanded an individual take an interest in the political and economic well-being of the village, county, parish, district, or state in which they lived. Accordingly, Jefferson considered the planter, estate owner, and yeoman farmer (i.e. those who engaged in small-scale subsistence agriculture) to represent the ideal republican citizen, while the merchant, banker, and urban laborer (who possessed moveable property or no property) were fundamentally unsuitable.

By granting land to members of this latter group – not enough to turn them into wealthy planters, mind, but a sufficient amount to allow them to subsist by their own hand – Jefferson doubtless hoped to convert a large percentage of Virginia’s population into what he considered to be ideal republican citizens. Granting, of course, that this theory of republican citizenship was just that – a theory – thus making it difficult to say whether the land grants the Sage of Monticello enshrined in his proposed Virginia constitution would have exerted the effect he desired, the logic behind it certainly aligns with what would become the Jeffersonian ideology. Key to this pattern of political thought – whose heyday in the United States spanned from approximately 1800 to the mid-1820s – was the toweringly idealistic and maddeningly vague notion that America was destined to form, as Jefferson wrote to James Madison in 1809, “An empire for liberty as [man] has never surveyed since the creation [.]” This empire, discussed at lengths in weeks past, was to be a community of conviction and principle rather than power, and its fundamental basis – its smallest, and yet most important constituent unit – was to be the meagre yeoman farmer whose property was (again, in theory) the foundation of his virtue, and who would have guarded against violations of the public good in the same breath that he defended the land upon which he lived. While it cannot be denied that there is a great deal more to the Jeffersonian ideal than the championing of the yeoman farmer, and that a great many years passed between the events of 1776 and the ascendancy of this ideal as a political force at the dawn of the 19th century, there would at least appear to be a seed of the Jeffersonian link between land and citizenship in the above-quoted passage of the Sage of Monticello’s draft constitution for Virginia. Said draft constitution therefore potentially represents one of the first written expressions of a stream of political thought that would go on to redefine the culture and government of the United States at a crucial moment in its early history.

Friday, April 22, 2016

Draft Constitution for Virginia, Part IX: Speaking the Unspoken

            As if the practice of religion was not a controversial enough subject to attempt to address in his draft constitution, Jefferson also made sure to reserve a provision of the same explicitly for the purpose of placing a limit on the continued practice of chattel slavery. There were few more delicate topics a Virginia gentleman like Jefferson could have sought to confront, both because he owned slaves himself and because the economy of the Southern colonies was built upon a foundation of free labour. That being said, Jefferson’s moral objections to the practice of slavery are well recorded, and it would have no doubt have seemed an opportunity lost for him to have simply glossed over the continued operation of a practice he claimed to detest while working to fundamentally reshape the government of his beloved Virginia. The nature of his response is consequently somewhat ambiguous, though in many ways it forms a part of a larger program Jefferson seemed intent on setting in motion with his draft constitution. Slavery was an institution supported by law, but whose practice shaped the very nature of Virginia society. To alter it would potentially transform the very culture of Virginia itself, in the long-term if not in the short-term. Doubtless this was Jefferson’s intention, and by considering the nature of these proposed alterations it becomes possible to gain a clearer picture of what the Sage of Monticello believed an ideal society should have resembled.

            Some form of involuntary servitude had existed in Virginia since the early 17th century with the introduction of landless labourers working under contracts of indenture. Some portion of these early indentured servants were of African descent –  records indicate that the first shipment of Black labourers was brought to the colony in 1619 after being intercepted aboard a Spanish vessel bound for the Caribbean or South America – and in time colonial law began to differentiate between them and their White fellow workers. In the 1640s the General Assembly sentenced an escaped African servant named John Punch to a lifetime of service to his master as punishment, and in the 1650s upheld the lifetime ownership of another African labourer named John Casor. In 1660 a woman named Elizabeth Key, who was the child of an African mother and an English father, sued for the freedom of herself and her child after she had been classified as a slave during the disposition of her late contract-holder’s estate. Key maintained that because her father had been a free Englishman, had acknowledged her as his own, and had her baptised a Christian that she was therefore incapable of being enslaved. In light of these facts, and the existence of indenture contracts which made clear the limited nature of her term of servitude, the colonial courts decreed that Key and her son – also the child of an English father – were indeed free. In response the House of Burgesses, intent also on countering a drop-off in European emigration and a resulting shortage of indentured servants, passed into law in 1662 the principle of partus sequitur ventrem (literally, “that which is brought forth follows the womb”). Thereafter all children born in the colony or Virginia were to inherit that legal status of their mother, thereby ensuring that the not-infrequent liaisons between White men and Black women (often in the context of household servitude) did not result in the birth of free offspring.

            A stable population of slaves thus ensured, the institution grew and solidified in the decades that followed. By the middle of the 18th century, at the beginning of Jefferson’s own lifetime, there were approximately 300,000 slaves resident in colonial Virginia. By comparison, Spanish-held Cuba hosted 50,000 slaves, while the exceedingly profitable sugar-plantations of French Saint-Domingue (modern Haiti) were built upon the labour of 450,000 of the same. In Virginia the cash-crop of choice was tobacco, a commodity that was both labour-intensive to produce and a highly lucrative trade good. Accordingly, the slave population in the colony increased via importation as the demand for the processed plant grew in European markets. Jefferson was raised amidst this competitive, profitable, and often brutal economic climate, and freely took part in its often dehumanizing transactions in spite of his oft-declared moral qualms. In his private life it has been recorded that he owned up to 600 slaves personally, a sizeable portion of which he inherited from either his father or father-in-law. He is also known to have purchased slaves to fulfill various functions on his plantation (as household servants, farm labourers, or in his various workshops), and sold over 100 individuals at various times, mainly out of financial necessity. In his professional life, meanwhile, he attempted to limit the expansion of slavery into the territories claimed by the United States in the Great Lakes region, opposed his home state’s attempt to set aside western land for emancipated slaves in 1802, supported limitations on the slave trade as President in 1807, and as late as 1819 spoke out against attempts to ban the importation of slaves into the proposed state of Missouri. Though by all accounts he was not a cruel master, and spoke often and well of the harm that slavery wrought against both slave and master, it’s clear enough from even this brief accounting that Jefferson’s perspective on the “peculiar institution” was somewhat peculiar in itself.

            It is particularly important to understand the ambivalence with which Jefferson regarded slavery throughout his life, if for no other reason than doing so helps to explain some of the apparent inconsistencies in his words and deeds. He was an opponent of slavery, or so he no doubt would have stated if asked his opinion on the matter. But there could be no denying all the same that the lifestyle he and his fellow planters enjoyed – replete with manor houses, fine food, expensive clothes, and fast horses – would not have been possible without the cheap and readily-available labour that chattel slavery provided. As much as the Sage of Monticello might have liked, in his heart of hearts, to do away with the institution and its corrupting influences altogether, he showed himself to be all too conscious of how instrumental the base and cruel ownership of human beings had become to the economy of Virginia and its fellow Southern colonies. When he thus saw fit to include in his proposed constitution for Virginia a clause which stated, “No person hereafter coming into this country shall be held within the same in slavery under any pretext whatever,” it was almost certainly with mixed intentions.

Plainly read, this single sentence would not have abolished slavery in Virginia. It would not have discouraged the ownership of slaves, penalized their masters, or offered incentives for their emancipation. What it would have done, admitting of little ambiguity, was make it unconstitutional for slaves to be imported into the state. This may seem like something of a half-measure, and with good reason considering the ability of the slave population to sustain itself via natural reproduction. But it still ought to be understood as a substantially radical measure for its time, and one which might not have been expected from a man of Jefferson’s background. Compared to the manner in which the United States Constitution addressed the institution of slavery, for instance, Jefferson’s draft constitution appears downright candid. In the former document, written in 1787, slavery is not even named explicitly. Article I, Section 2, which outlines the manner by which Representatives are to be apportioned, refers to slaves rather obscurely as, “All other Persons [,]” after having described, “free Persons,” “Those bound to Service for a Term of Years,” and, “Indians not taxed [.]” The only other reference to the institution, similarly arcane, is found in Article I, Section 9. “The Migration or Importation,” it reads,

Of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Jefferson no doubt agreed with the sentiment behind this clause, which essentially admitted that the United States Congress possessed the authority to limit or abolish the slave trade after the year 1808, though he perhaps might have found fault with its manner of approach.

            It is noteworthy, for instance, that Jefferson referred to slavery in his draft constitution for Virginia – written a full 11 years before the comparatively equivocatory U.S. Constitution – as just that. The fact that he did not dance around the term, speaking instead of “involuntary servitude,” is accordingly a credit to his frankness, if one of somewhat dubious merit. An early draft of the Declaration of Independence seems to corroborate the Sage of Monticello’s desire at this early period in his public career to cut through the ambivalence that pervaded discussions of slavery in 18th century America. Among the list of grievances Jefferson intended to lay before George III in said document, one which did not survive the editing process was the accusation that the king,

Has waged cruel war against human nature itself, violating it's most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemispere, or to incure miserable death in their transportation hither.

In light of the support the Declaration needed to garner from the Southern as well as Northern colonies if independence were survive the tumult to come, it perhaps comes as little surprise that Jefferson was forced to excise any mention of the institution to which the greater portion of the Southern political class owed their wealth. That being said, it seems fair to conclude that his need to speak openly – and indeed quite negatively – about the nature of slavery in 18th century America was both unusual and unwelcome.

            The brief clause which addressed slavery in Jefferson’s draft constitution for Virginia nonetheless seemed to follow in this mold. Without equivocating, fumbling with terminology, or attempting to gloss over the true nature of the topic at hand, the Sage of Monticello plainly declared that no person entering Virginia after 1776 was to be held in a state of slavery. One is tempted, perhaps, to ascribe this desire for plain speaking to Jefferson’s commonly-expressed aspiration to promote what he described as “republican simplicity” in American manners and culture. Then again, it may have been alternatively a function of his personal ambivalence; if he was unwilling or unable to come down definitively in favor of or in opposition to the institution of slavery, he could at the very least speak of it candidly. Perhaps neither of these represents a satisfactory explanation, it being essentially impossible to prove or disprove one or the other. All the same, these scenarios are at least worth contemplating. Jefferson’s relationship with slavery was complex, and often grated against his republican philosophical convictions. Exploring the tension between these elements of his personality represents a potentially fruitful avenue of exploration into how and why certain elements of American political culture are what they are. The substance of the aforesaid constitutional clause is highly indicative of exactly this tension.

            As radical as Jefferson and his convictions often presented, there were few opportunities over the course of his life that allowed him to give full and unlimited effect to his more controversial philosophical impulses. What he desired, in short, was ever circumscribed by what was possible. His presidency stands as a monument to this axiom, rife as it was with bold gestures and bitter compromises. Jefferson’s attempt to draft a constitution for his home state of Virginia in 1776 was no less marked by the clash of ideal and reality. He may indeed have hated slavery as passionately as he often described. And it may have been his genuine hope to do away with the institution entirely, thus purging his beloved home state of the corrosive influence which he ascribed to the ownership of human lives. Yet he seemed to believe, as evidenced by his attempted prohibition of the slave trade alone, that total abolition and emancipation was simply not possible at that moment in Virginia’s history. This realization was almost certainly due to concerns both personal and public. Accepting, of course, that the wealth and privilege Jefferson enjoyed were due almost entirely to his status as slave-owner, and that he thus stood to lose a great deal in the event of the institution’s disintegration, there were also concerns of a more abstract nature relating to slavery that troubled the Sage of Monticello, and likely led him to support the half-measure of slave trade prohibition.

            In spite of his stated belief in the universal application of certain basic human liberties (“all Men are created equal [and] they are endowed by their Creator with certain unalienable Rights”), Jefferson did not necessarily hold that all of humankind was of quite the same quality. A man’s (or a woman’s) inherent spiritual or moral worth – sacred, untouchable, worthy of protection – was one thing, but it was plain enough to the Sage of Monticello, as it was to many in the 18th century who concerned themselves with the study of human nature and human society, that not all people were as intelligent, as talented, as strong, or as competent as one another. Based on his own personal study, and likely on whatever scholarship then existed on the subject of “racial taxonomy,” Jefferson accordingly concluded that people of African descent were not as intelligent as people of European extraction, or as beautiful or emotionally complex. This opinion he plainly expressed in his Notes on the State of Virginia, a kind of book-length survey of his home state published in 1781 and updated in 1782 and 1783. “Are not the fine mixtures of red and white,” he wrote of the beauty he found in his own race, “The expressions of every passion by greater or less suffusions of colour in the one, preferable to that eternal monotony, which reigns in the countenances, that immoveable veil of black which covers all the emotions of the other race?” He went on to compare the mental and creative capacities of Native Americans and African Americans, finding that the former,

Astonish you with strokes of the most sublime oratory; such as prove their reason and sentiment strong, their imagination glowing and elevated. But never yet could I find that a black had uttered a thought above the level of plain narration; never see even an elementary trait of painting or sculpture.

In spite of these declarations – no doubt distressing to a modern audience – Jefferson nonetheless remained adamant in the conviction that the inherent deficiencies he perceived in the “Black race” did not rob them of their inherent rights. His observations did, however, give him cause for concern, in as much as they seemed to indicate that emancipated former slaves might find themselves at a disadvantage in an American society dominated by their intellectual betters.
          
Worse yet, he went on to argue, the appearance of a large population (upwards of 500,000 in the late 18th century) of former slaves in America would result in competition between the two, followed inevitably by bloody racial conflict. The reasons for such a conflagration were, in his opinion, many, and owed both to perceived physical differences and acrimony on both sides resulting from past grievances. “Deep rooted prejudices entertained by the whites [,]” he specified, along with,

Ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real distinctions which nature has made; and many other circumstances, will divide us into parties, and produce convulsions which will probably never end but in the extermination of the one or the other race.

It was clear enough in Jefferson’s opinion that even if emancipation were possible it would not have been desirable. This dour conclusion was no doubt the reason he came to support “colonization” – the resettling of free Blacks in privately funded communities in Africa – as the best possible solution for the racial quagmire that slavery in American represented. Eliminating the slave trade represented the other half of the equation; if slaves were no longer being imported at the same time those already present were slowly freed and relocated to another continent entirely, the moral qualms of men like Jefferson could be alleviated at the same time that social harmony could be maintained. Doubtless this is not a solution that most people at the dawn of the 21st century would find satisfying, and for good reason. Banning the slave trade in Virginia would certainly have exerted significant downward pressure on the growing slave population. However, the resulting relative scarcity of those still held in servitude may perhaps have resulting in slave-owners adopting such measures as to perpetuate a stable body of free labour, in effect making it even less likely than before that slavery would gradually fade away.

            This kind of public reaction to any attempt at regulating slavery was no doubt the other major factor that regulated Jefferson’s approach to the same in his draft constitution for Virginia. As mentioned above, slavery had existed in a form recognizable to the average plantation owner for over a century by the 1770s. The colonial economy had come to depend on the presence of a massive pool of free labour, and the social elite in particular could locate the source of almost all of their substantial wealth in the continued purchase and ownership of human beings. Bringing an end to slavery, as one might accordingly conclude, did not represent a significant cultural priority for the people of Virginia at the dawn of the American Revolution. Even on the level of individual planters, manumission – the voluntary emancipation of slaves by their master, often as a part of the latter’s will – was quite rare until the later decades of the 18th century. In 1782, for example, there were only 1,800 free people of color in Virginia, out of a total population of just over 500,000. This number expanded significantly over the course of the 1790s and the first decade of the 19th century, so that by 1810 the free Black population numbered over 30,000 (7.2% of the overall population).

The cause of this explosion in the number of free people of color living in Virginia was almost certainly twofold. Evangelical preachers, free to spread their interpretation of the Gospel after the passage of Jefferson’s Statute for Religious Freedom in 1786, doubtless made significant inroads (as they had across the colonies since the 1730s) in convincing slave-owners of the peculiar institution’s incompatibility with Christian moral doctrine. At the same time, the rhetoric of the Revolution – liberty, justice, inalienable rights, and the equality of mankind – exerted a powerful effect on the social and cultural assumptions of people across the United States. Made to confront the inconsistencies between their own actions and deeds, many Americans in the 1780s and 1790s came to regard slavery as incompatible with the basic philosophical and moral tenants for with they had so recently been willing to lay down their lives. Widespread manumissions followed, along with campaigns of emancipation mandated by state governments in the North whose economies were not dependent on slave labour to function.

In 1776, however, most Virginians had yet little reason to question the morality or philosophical consistency of perpetuating slavery. As noted previously, Jefferson’s attempt to decry the institution in his original draft of the Declaration of Independence met with resistance enough in the summer of the same year – doubtless chiefly from among his Southern planter colleagues – to have the passage entirely expunged from the final copy. Having composed his draft constitution for Virginia at essentially the same time such objections were being raised, Jefferson no doubt developed an acute understanding of what his fellow Americans were willing to tolerate. And no doubt he considered his attempt to craft a new government for his home state to be an important work. More than a piece of legislation applicable to this or that issue, it represented an opportunity to reshape an entire culture by altering the manner in which it was governed. It stands to reason, then, that the Sage of Monticello would have wanted to give his draft constitution the best possible chance of being ratified by his fellow Virginians. To that end, even if Jefferson had wanted to pursue the elimination of slavery in Virginia (forgetting for a moment his various personal reservations), such a course of action would doubtless have appeared entirely counterintuitive. In 1776, the high-minded ideals of the Revolution still confined to the debating chambers and pamphlets of the social and political elite, Virginia simply wasn’t ready to countenance substantial interference with one of their most significant economic institutions.    

 To place matters in some degree of perspective, the constitution for Virginia proposed by George Mason and ultimately adopted in June, 1776 made no mention whatsoever of “slavery,” “slaves,” “the slave trade,” or even “those held in involuntary servitude.” Under the government it erected slavery was to be left untouched, or at least reserved for the General Assembly to regulate as its members deemed fit. The constitution adopted in 1778 by Virginia’s fellow Southern colony North Carolina (Black population in 1780: 90,000) was similarly close-lipped on the subject of slavery, using the term itself only to refer to the state to which British actions had reduced the American colonies. Neither South Carolina’s (Black population in 1780: 97,000) 1776 constitution nor its 1778 constitution made any greater effort to address the state of the peculiar institution, and Georgia’s 1777 constitution followed suit. In fairness, the first constitutions of New York, New Jersey, and Pennsylvania, all Northern states with relatively small slave populations, were no better in this regard. Indeed, it was not until the adoption of the United States Constitution in 1788 that any post-Revolutionary American governing charter even acknowledged the existence of slavery, and even that document did so in an exceedingly circumspect manner (as noted above). That this first American constitutional reference to slavery occurred only in the context of allowing limitations to be placed upon the slave trade once 25 years had elapsed from the time of its coming into force seems to speak quite powerfully to the unwillingness of 18th century Americans to even address slavery in a public context.

It is consequently quite remarkable that Jefferson, in spite of his personal qualms and the frigid public climate, attempted even to limit the operation of the slave trade in his draft constitution for Virginia. His views on the institution were, as noted, distinctly ambiguous, and the consensus among a great many of his colleagues across the colonies/states seemed to be that slavery was best avoided in any public discussions of the moral or legal ideals of the Revolution and their practical application. If, in short, Jefferson had simply declined to mention slavery in his draft constitution for Virginia, likely no one would have questioned its absence or attempted to hold the Sage of Monticello to account. It is for that reason rather remarkable that he felt compelled to include the clause quoted above. Attempting to place limitations on the slave trade hardly represented a complete and unambiguous denunciation of the institution of slavery, but it at least spoke to a core intention. Erecting a legal barrier against the importation of slaves into a given territory effectively acknowledged that the presence of greater numbers of slaves in said territory represented a negative outcome. It was a value judgement, albeit a rather muted one, yet it all the same called into question the notion that Virginia had a compelling public interest in allowing the slave population to expand exponentially. Recalling that this same clause was put forward by Jefferson a decade before the far more diffident language contained within the United States Constitution even nodded in the same direction, it becomes clearer still what an unusual thing it was for him to have even attempted at such an early period in America’s revolutionary transformation.

Friday, April 15, 2016

Draft Constitution for Virginia, Part VIII: the Crown and the Cross

Thus far the elements of Thomas Jefferson’s draft constitution for Virginia that have been herein examined – in terms of their continuity with existing practice, their lack thereof, or their origins in classical antiquity – have been discussed mainly by way of the larger context of the widespread constitution writing that occurred across the newly-independent United States in the late 1770s. This has hopefully been a helpful approach. Jefferson was, after all, but one member of a sizeable political and intellectual community. Attempting to understand his actions and his choices is thus potentially facilitated by delving into the activities and motivations of his peers and the manner in which they reacted as a group to the political and social trends and events that they collectively encountered. That being said, there were naturally certain ideas, certain concepts, or certain principles that Jefferson held in isolation from his contemporaries among the Founding Generation. He has, after all, long been heralded as a radical, even among a cohort of men and women who saw fit to overthrow the only political order they had ever known and erect a new and untested framework in its place. Not every conviction that Jefferson held was all that common among the Founders, and thus there were bound to be certain elements of his draft constitution for Virginia that lay somewhere outside of his peers’ consensus as to the proper form a republican government should take. These elements take many and varied forms, but they each communicate something important about the ideal society that Jefferson envisioned and attempted to codify in 1776.

Certain of them are admittedly harder to account for than others. Some of what Jefferson proposed in his draft constitution was novel in 1776, but has since gone on to become de rigueur in the modern United States. America, for instance, is not a monarchy. This fact – stunningly obvious on the face of things – potentially masks the importance of some of the choices Jefferson and his compatriots made in drafting constitutions for their home states, and has the potential to make the transition from a collection of British colonies to an independent republic appear almost inevitable. In point of fact, it wasn't. By challenging the established political order that had underpinned and sustained the existence of the British North American colonies for well over a century, the Founders were making a metaphorical leap in the dark. Their success was far from certain, and the final form that their various ad-hoc revolutionary governments might have taken was similarly ambiguous. In setting out a codified and highly structured government for Virginia during this period of supreme uncertainty – and possibility – Jefferson made several very important decisions that gave tangible form to his grievances with America’s past and his hopes for its future.

The monarchy – mentioned above – was a key part of this vision. In the preamble to his draft constitution for Virginia, Jefferson made it exceedingly clear that his home state would no longer recognize the authority of the reigning British monarch (George III) or any of his descendants or successors. “Be it therefore enacted by the authority of the people,” he declared,

That the said, George Guelf be, and he hereby is deposed from the kingly office within this government and absolutely divested of all it’s rights, powers, and prerogatives: and that he and his descendants and all persons acting by or through him, and all other persons whatsoever shall be and forever remain incapable of the same: and that the said office shall henceforth cease and never more either in name or substance be re-established within this colony.

There are a few specific things to note before moving on to the broader significance of this passage. The first is Jefferson’s invocation of “the authority of the people.” This was a very Lockean idea, that the collective population of a state possessed the authority to depose their anointed sovereign. There was certainly precedent for such a declaration in English history – namely the deposition and execution of Charles I by Parliamentary authorities in 1649 – but it was nevertheless not a doctrine that had seen a great deal of use in orthodox political discourse. Another point worth observing is the manner by which Jefferson chose to address the reigning monarch. Rather than refer to him as, “George the third, King of Great Britain and Ireland, and elector of Hanover” (as George Mason’s successfully adopted constitution for Virginia did), he called him simply “George Guelf.” This was an example of what is sometimes referred to as “descralization” or “desanctification,” whereby a person, object, or idea that has formerly enjoyed a high degree of social esteem is insulted or denigrated as a means of robbing it of its accustomed authority. The House of Guelf (or Guelph) was the extended aristocratic family from which George III descended. Therefore, dispensing with his royal titles and referring to him as George Guelf was a means of demystifying the royal personage and emphasizing the fact that the king to whom Americans were supposed to owe their allegiance was but a man himself. Tellingly, the French Revolutionary government that was responsible for the trial and execution of Louis XVI in 1793 made the same gesture when they began to refer to the deposed king as “Louis Capet” (from the Capetian Dynasty to which he belonged).

            More significant than the way Jefferson chose to depose the monarchy in Virginia, however, is the mere fact of it. Virginia was not simply to refuse recognition to the specific monarch against whom its people nurtured grievances, but rather intended to render the office itself “absolutely divested of all it’s rights, powers, and prerogatives [.]” George III was not simply to be passed over for a more discreet alternative – perhaps one of his sons, or a member of a cadet branch of the House of Guelf. Rather, “He and his descendants and all persons acting by or through him, and all other persons whatsoever [,]” were to remain ineligible to hold royal office in Virginia for all time. Indeed, the office of monarch was to cease to exist altogether, “never more either in name or substance [to] be re-established within this colony.” These were bold, declarative statements that admitted of no ambiguity or ambivalence. Jefferson, with the stroke of a pen, intended to first diminish and then abolish forever the monarchy that had held sovereignty in Virginia for over 150 years. Because, as aforementioned, the United States is today a proudly republican nation, this might seem a rather obvious choice on his part. It must be clearly understood, however, that it was not.

            Not every member of the Founding Generation was as ardently devoted to political republicanism as Thomas Jefferson. Certain among their number, like the moderate pacifist John Dickinson or the ambitious, manipulative Alexander Hamilton, were personally quite attached to the British model of government and would have preferred to see it perpetuated in an independent America. Indeed, Hamilton notably advocated for the presidency as an elected monarchy before the assembled delegates of the Philadelphia Convention in 1787 as a remedy for the weakness of Congress under the Articles of Confederation. Though neither he nor Dickinson were prepared to excuse the abuses that had been committed by the contemporary British government, they were also seemingly unwilling to cast aside a model of administration that have proven capable of overseeing a vast and successful colonial empire. Doubtless they were not alone in this conviction, and while Classical republican philosophy represented a dominant strain of thought among the American colonial elite, it was not necessarily clear, even at the height of revolutionary fervor in the 1770s, whether America was finished with all forms of monarchy or simply with the British monarchy. On this head, it also bears remembering that Jefferson’s monarchy-abolishing draft constitution was written in the spring months prior to the Continental Congress declaring American independence in July, 1776. Had an offer of peace and reconciliation that addressed the colonists’ grievances turned up in Philadelphia in, say, June of that year, the colonies may well have determined to remain subjects of the Crown. This was, it must be admitted, an unlikely scenario given how much blood had already been shed since the beginning of the Revolutionary War in April, 1775. It was not, however, impossible, and for certain residents of the colonies was doubtless fervently hoped for.

            By unequivocally disqualifying monarchy from having any role to play in the political life of Virginia, however, Jefferson was seemingly attempting to steer the Revolution in a distinctly republican direction. In his vision of an ideal government, if his draft constitution is any indication, all power could be clearly traced back to the people. All procedures for electing or appointing legislators, executives, or justices were made explicit and unambiguous, and accountability, in the form of frequent elections and term limits, was of paramount importance. A monarchy whose origins were vague at best and whose authority derived from traditions and precedents shrouded in the mists of time was quite simply incapable of existing within an administrative framework so defined. Some of Jefferson’s contemporaries might have disagreed, might have held that a monarchy that was properly restrained by the law could provide a useful stabilizing or mediatory function. Debates would be held on this very topic in the years to come, and though with the benefit of hindsight it no doubt seems laughable that the United States should ever have chosen to adopt a monarchy of its own, it ought to be understood that the 1770s and 1780s represent an era of experimentation in the history of American government. The creation of a limited monarchy was as valid a choice as empowering an elected presidency, and one to which the history of many modern constitutional monarchies surely attests. It was not, however, a perspective that Jefferson was willing to countenance. His draft constitution for Virginia accordingly bears the stamp of his reactionary republicanism, and should be recognized as such.

            Some of the other particularly novel provisions that Jefferson enshrined in his draft constitution had a more distinctly moral dimension than his dedication to republicanism would necessarily indicate. One clause, for example, stated under the heading “Religion” that, “All persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution.” This represented both a fundamental upending of established practice and an admission on Jefferson’s part to a cause of which he was particularly fond; namely, freedom of religion. As discussed in weeks past, the state of Virginia was one of several colonies that recognized the Anglican Church of England as the sole established purveyor of personal salvation. This meant that Church activities – poor relief, the upkeep of Church property, and the salary of Church ministers – were funded by locally-collected taxes, and also gave the Anglican hierarchy the exclusive right to operate institutions of higher learning. Under this system, those who professed a religion other than the Anglican Church, or who wished to be associated with no particular organized faith, were nevertheless compelled by law to pay for the upkeep of the colony’s only recognized religious institution.

This became particularly problematic once the evangelical zeal unleashed by the First Great Awakening (approx.1730-1755) led to the growth of Presbyterian, Methodist, and Baptist congregations in Virginia. Members of these communities were required to fund a religious establishment in which they had no stake at the same time that they represented an increasingly substantial social and political force. The Revolution provided temporary relief to these beleaguered populations precisely because of the numbers they represented – the provisional government of Virginia wished to enlist as many people as it could in favor of the Revolution – but the toleration that was permitted during the war years promptly ceased with the resumption of peace in the 1780s. Thomas Jefferson, who believed along with many 17th and 18th century Enlightenment reformers that the key to establishing universal peace laid in eliminating all causes of religious persecution, took particular issue with what appeared to him to be a bastardization of basic religious principles. He accordingly drafted the Virginia Statute for Religious Freedom in 1777, though it was not passed by the state legislature until 1786. This piece of legislation laid out a series of objections to Virginia’s Anglican establishment that fixated mainly upon the incompatibility of the personal expression of faith that was an individual’s religion with the mechanisms of state coercion that the Church of England enjoyed the use of. Doubtless because it sought to alleviate the burden under which they lived and worshipped, the Statute received the greatest share of its support from the Nonconformist community, and it ultimately succeeded in breaking down Virginia’s longstanding religious establishment. As of Jefferson’s death in 1824 it remained one of a small number of accomplishments – a list which notably did not include being either Secretary of State or President – of which he was most proud.

As of the drafting of his proposed constitution in 1776, the Virginia the Statute for Religious Freedom was still a year away from being written and decade away from being adopted. All the same, the notion of codifying freedom of conscience appeared already to form a part of Jefferson’s agenda. Indeed, though the abovementioned clause within his draft constitution is considerably more succinct than the later Statute, and delves into none of the moral or logical underpinnings the Sage of Monticello ascribed to religious freedom, it unquestionably represents a stronger legal protection of the free expression of individual religious faith. The Statute for Religious Freedom was, after all, just a statute. A piece of regular legislation, it was thus subject to repeal or alteration by future governments. Jefferson was abundantly aware of this, and he responded, somewhat desperately, by stating at the end of said document that though the government which passed the act had, “No power to restrain the acts of succeeding Assemblies constituted with powers equal to our own […] if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”

The relevant provision of the draft constitution for Virginia conversely required no such elaborate caveat as a means to prevent its being abolished because it was an explicit constitutional provision. Whereas an act of the General Assembly of Virginia would have required only a simple majority (51%) in the upper and lower houses to become law, any amendment to the state constitution that Jefferson proposed in 1776 demanded both an act of the legislature to that effect as well as the assent of the majority of those assembled in fully 2/3 of Virginia’s recognized counties. This represented a reasonably stiff barrier to alteration, and would doubtless have ensured that the government Jefferson sought to erect in his home state would not have been subject to frequent or fundamental changes unless a substantially large majority of the population was in favor of the same. In this sense, promoting freedom of religion via constitutional fiat represented a much safer bet than depending on an act of ordinary law. Therefore, although the clause enforcing freedom of religion in his draft constitution did not give voice to the depth of Jefferson’s concerns on the matter, it would have provided a substantially stronger guarantee that the citizens of Virginia could practice whatever faith agreed with their sensibilities than the later, much-lauded statute. Perhaps because the former was not adopted – the document it was a part of having arrived too late – the Sage of Monticello sought to intervene with the latter.

Then again, perhaps it was not just a matter of poor timing. As mentioned previously, Jefferson’s draft constitution for Virginia did find its way into the hands of the state’s provisional government in time enough to at least be considered alongside the favored, and ultimately adopted, proposal put forward by George Mason. Certain elements of Jefferson’s version were even adopted and integrated into the final draft, though the substance of it was put aside. While a comparison of the two documents in question – Jefferson’s and Mason’s proposed constitutions – reveal in many aspects strikingly different visions as to how Virginia should have been governed, certain similarities would seem also to corroborate a more than coincidental relationship between the two. That being said, the difference between their respective approaches to the aforementioned concept of freedom of religion provides a potentially enlightening insight into Jefferson perspective on established religion and that of Virginia’s political mainstream. Mason’s draft tellingly began with a sixteen-article declaration of rights, intended to provide a clear indication of the limits of the government it was prepared to outline. The last of these explicit articles stated, in full,

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Clearly Jefferson was not alone among the Founding Generation in his dedication to the formal recognition of religious freedom. Indeed, it is a testament to the liberality of the American Revolution and it supporters that the political elite who supported the draft which contained this provision were willing to do so at a time when religious establishments were not only the global norm, but formed the only religious context they themselves had ever known.

    There was, however, an important different between what Mason’s draft and Jefferson’s draft respectively promised. As the excerpt above indicates, Mason intended the state of Virginia to recognize the right of all its citizens to exercise whatever religion they pleased. This certainly represented a change from what had come before, and no doubt would have brought an end to any lingering persecution of evangelical Christian congregations. What Mason’s provision did not accomplish, however, and which Jefferson’s did, was the constitutional prohibition of state-funded religious institutions. No one, Jefferson’s draft made explicit, in addition to being forced to practice any faith to which they do not subscribe, “Shall be […] compelled to frequent or maintain any religious institution.” This was another matter altogether from the state simply recognizing freedom of conscience, bound up as it was with taxation and accordant concerns with public accountability. Mason and his supporters in Virginia’s revolutionary government may have been willing to recognize that government no longer had any place shaping the religious sensibilities of the citizens it intended to serve. But at the same time they were evidently reluctant – perhaps owing to the stabilizing effect they believed it could provide or the institutions of higher education it still controlled – to entirely disestablish the Anglican Church in Virginia. Jefferson was, and the fact that the clause of his draft constitution which would have accomplished the same was not adopted when Mason’s was being finalized is a probable indication that the Sage of Monticello’s perspective on organized religion and its relationship to the state was too radical in 1776 for even the revolutionary mainstream to accept.

Friday, April 8, 2016

Draft Constitution for Virginia, Part VII: Idealism

Where Jefferson’s apparent ability to strike a balance between philosophy and pragmatism in his draft constitution for Virginia seemed to break down was in the way he attempted to apply this same concept of term limits to the office of Senator. As stated above, Jefferson determined that membership in the upper house of the General Assembly was to be limited by an age restriction (30 years or over), and that those lucky enough to be elected would be force to relinquished their office at the conclusion of three years. Both of these measures were almost certainly intended to shape the character of Virginia’s Senate by first ensuring that it was populated by men with mature judgement and a higher-than-average degree of personal wealth, and then by insulating those men from the day-to-day concerns of the voting public. The modern United States Senate functions along essentially the same lines, and though one may fairly question that body’s effectiveness of late, the logic that defines its basic shape and composition has well withstood the test of time. Jefferson differed from later federal attempts to create a stable bicameral legislative body, however, by mandating that all Senators, once their three year terms had concluded, “Shall be forever incapable of being re-appointed to that house.” While the intent behind such an inflexible restriction seems clear enough – staving off corruption – one is forced to wonder whether the Sage of Monticello considered some of the complications that would likely have resulted.

As with the House of Representatives, Jefferson made sure to explicitly define the size of the Senate in the text of his draft constitution. “The Senate shall consist,” he declared, “of not less than 15 nor more than 50 members [.]” Compared to the lower house’s upper limit of 300, this seems a paltry number of qualified men to locate. Out of a pool of 500,000, minus women, slaves, and non-voters, how hard could it have been to find 50 men over the age of 30, not every year, but every three years? Doubtless Jefferson thought along these lines, and decided that the potential challenge was hardly that. Consider for a moment, however, this same proposition if every three years one had to locate 50 wholly new men. Granted, year after year a new cohort would turn thirty, and thus a new class of potential Senators would become eligible with every election. But what of those men who had served previously? Surely some of them would prove especially suited to the Senate, and in time their service to Virginia would prove eminently beneficial to the public good. Under the regulations that Jefferson laid out in his draft constitution whatever good they may yet have done was of no consequence. Once their three year term expired they were to be exiled from the upper house forever. After a period of a few decades, it furthermore seems rather likely that such a system would produce a Senate composed predominantly of men in their early thirties – a consequence of the older cohorts serving earliest and thereafter being disqualified from re-election. Considering Jefferson’s apparent desire to craft an upper chamber defined by moderation and wisdom, limiting every eligible man to a single term in office appears vaguely counterintuitive.

Likewise, Jefferson seemed not to consider the potential negative effects of single-term membership in the Virginia Senate on promoting public service among his home state’s upper classes. Not every man who sought membership in their local assemblies, in their state legislatures, or in the Continental Congress in the late 18th century did so out of purely altruistic motivations. Some percentage surely looked upon serving a term in public office as Jefferson did, as an obligation due from men of talent and wealth on behalf of the community whose fruits they enjoyed. For these sorts of men, being forced to retire from a legislative body after serving a single term would likely have seemed entirely in keeping with the principles of self-sacrifice and transparency that they held dear. At the same time, there must have also existed some quantity of those seeking or holding public office in 18th century America whose motivations were entirely selfish. For them, public service was simply a means to establish useful connections, gain access to privileged information, or enhance their social standing. Being limited to a single term in a given office likely would have discouraged such men from seeking it altogether, and so much the better. Yet between these two there must have been a third cohort, well-disposed toward their political community as well as interested in furthering their own welfare. They may well have been capable men, wise, judicious, and educated, who simply happened to be more ambitious than they were noble. The community may have benefited greatly from engaging them in public service, provided it made the office in question appear just attractive enough. Confronting men of such character, in whatever percentage they existed, with the brake on their ambition that a single-term limitation surely would have represented, would almost definitely have prevented a sizable portion from even entertaining the notion of pursuing public office.

Thomas Jefferson, for all his flaws, was a man of noble intentions. It is hardly surprising, then, that he intended the public servants responsible for the political and administrative well-being of his home state to be of a similar character. Set on crafting the first republican government in Virginia’s history, he went about the task with an appropriately republican appreciation for such values as self-sacrifice and the public good. The only way a republic could survive, his study of classical antiquity doubtless informed him, was by structuring itself in such a way as to make virtue and integrity the highest social values. Within a society so defined, public service was to be the single most important contribution an individual could make to the commonwealth in spite of the sacrifices it often demanded. Many among the Founding Generation would doubtless have endorsed this vision of republican virtue, and held themselves to standards of behavior no less rigid or self-disciplined. Unfortunately, or perhaps simply as it happened, not every citizen of the fledgling United States cultivated the same sense of ascetic selflessness that men like Jefferson so keenly prized. For that matter, it could neither be depended upon that such high-minded social values would be freely adopted by subsequent generations. Confronted with what they perceived as the greed, corruption, and arrogance of the British ministers responsible for driving a wedge between the colonies and their mother country in the 1770s, many of the Founders swung violently in their other direction when it came time to erect new governments in America. If avarice had been at the root of the recent crisis, then the administration of the American states needed to be purged of any elements that might be seen to reward untrammelled ambition. If the promise of wealth and power had been the chief motivators for service in the contemporary British government, then government in America needed to be selfless, costly to those it employed, and limited in its ability to do harm to the public.

The tangible results of this reformist ethos were most notably the various state constitutions drafted between 1776 and 1780. Though they varied significantly in form and function, each seemed guided by the same common, self-conscious dedication to avoid the sins of contemporary British parliamentary government by enshrining certain fundamental principles into the paramount law of the land. Where the House of Commons faced election at intervals of as long as seven years, the lower houses of Delaware, Georgia, New Jersey, New York, Maryland, Massachusetts, Pennsylvania, North Carolina, and South Carolina were all to be elected on an annual basis. Whereas the chief executive of the British government was a hereditary monarch whose legitimacy derived from tradition and precedent, the governors of the various American states were to be elected by the people (New York and Massachusetts), selected from among a governing council (Pennsylvania and New Hampshire), or chosen by the legislature (Georgia by a unicameral assembly, Delaware, New Jersey, Maryland, North Carolina, and South Carolina by a joint ballot of the upper and lower houses). And while members of the House of Commons could seek re-election continuously, until they were defeated, retired, or died, many of the American state constitutions – including those of Pennsylvania, Maryland, North Carolina, South Carolina, and Delaware – placed strict limits on the number of years an individual could hold a given office. Certain of these modifications to the formula of government in American would admittedly prove cumbersome in the years to come – indeed, it was the inadequacies they perceived in the existing state governments that partially motivated men like James Madison and Alexander Hamilton to push for a more “energetic” federal government in the latter years of the 1780s. That being said, the motivation behind this widespread divergence from the established (i.e. British) mode of government was clearly neither isolated nor haphazard. In an effort to be as unlike their forebears-cum-enemies as possible (within reason), many of the Founders set out very deliberately to create administrative frameworks within their respective states that rejected British precedents and embraced Classical republican and Enlightenment principles.    

        While once again maintaining the purity of Jefferson’s intentions, it is possible that he took this common reformist impulse a bit too far. Though his draft constitution for Virginia otherwise demonstrated an admirable balance of principle and practicality, his decision to limit individuals serving in the Senate to a single three-year term appears at least somewhat naĂŻve. Not every man in Virginia of substance and maturity enough to qualify for service in the upper house of the General Assembly would have received such a limitation in good humour. Those who sought appointment to the Senate solely as a means of furthering their own interests were just as well to be warned off, but the surely sizable contingent of eligible men who held service to the public good to be equally as important as service to their own prosperity might have reacted with similar disinterest. This would have represented an unfortunate turn for a body of men sorely in need of fresh recruits on an annual basis, as well as for the people whose interests they were intended to serve. However well-intentioned this provision against repeat service in the Senate may have been, it stands in evidence of the fact that Jefferson at times allowed his idealism and his passion to run wild. As his long-time friend and collaborator James Madison was to point out a decade later in Federalist No. 51, “If men were angels, no government would be necessary.” Jefferson, it seemed in 1776, believed to the contrary that men could be angels if that is what their government required of them.

Friday, April 1, 2016

Draft Constitution for Virginia, Part VI: Antiquity

In spite of how worn a topic it must seem to those among my audience who have been following the thread of my various discussions for any significant length of time, I find that it is terribly difficult (though I will admit to not trying very hard) to approach topics relating to republicanism in an 18th century context without also touching upon the influence of classical antiquity. Though American republicanism has long since become a beast of its own making, complete with traditions, and assumptions, and a logic underpinning its operation about which countless volumes have been written, the fact remains that the men (and women) who helped first mold republicanism in its American form were tremendously influenced by what had come before. More specifically, they were influenced by the republican traditions they had gleaned from reading histories of the Roman Republic and the democracies of Ancient Greece. Names like Cato, Cicero, Tacitus, Plato, Demosthenes, and Aristotle loomed large in the curriculum of generations of colonial American intellectuals and statesmen, and wrought their influence perhaps most tangibly during and immediately after the Revolution. An era of renewal in which political traditions were widely questioned and innovation seemed to rule the day, the lessons of antiquity rose to the forefront at this moment in history as a viable guidepost for reform amidst a climate of great possibility as well as terrifying uncertainty. Jefferson’s draft constitution for Virginia bears the marks of exactly this familiarity with, if not reliance on, ancient precedents.

These precedents, as was often the case in early republican America, were in Jefferson’s specific case the forms and logic employed by the republican incarnation of the ancient Roman civilization (lasting from 509 BC to 27 BC). Though not particularly democratic, the Roman Republic made use of a number of assemblies and a host of magistrates, each often representing a specific social class, in order to create a government that balanced the needs of different demographics against one another so as to prevent any one of them from attaining political supremacy. The magistrates in question, going by such titles as Aedile, Quaestor, Censor, and Consul, were subject to election by one of the many assemblies (Curiate, Centuriate, Tribal, or Plebian), most often on an annual basis. Furthermore, as a means of staving off corruption by preventing any serving member of the Roman government from becoming entrenched in his position, strict limits were placed on how long an individual had to wait before being re-elected to the same position. A person having been elected Consul by the Centuriate Assembly in 42 BC, for instance, would serve a one year term and then be forced to wait until 32 BC (ten years later) to hold the same office again. Though the Roman Republic did eventually collapse amidst a morass of corruption, military adventurism, and demagoguery in spite of the operation of such formal limitations, the ideals of public service and self-sacrifice at the core of Rome’s republican constitution proved to be an inspiration for a number of later civilizations. The reformers and philosophers of the Enlightenment in particular often sought refuge from the absolutism and corruption of their own era by celebrating the logic and reason they perceived in the popular governments of the ancient world.

Jefferson, being a student of the Enlightenment and the Classics himself, was no different. When he set about drafting a constitution for his native Virginia in the spring of 1776, he accordingly chose to put in place a number of checks on the power of certain offices in clear homage to his classical republican forerunners. Jefferson determined, for instance, to limit the office of Senator to those free men, “Being 31 years of age at the least [.]” Candidates for the various Roman magisterial offices faced similar qualifications, from Quaestor (30 or over) all the way to Consul (42 for plebians, 40 for patricians). The logic behind such a provision, in ancient Roman as in 18th century Virginia, was to prevent a position of significant power and importance from falling into the hands of someone who was immature, immoderate or insubstantial (thus making them susceptible to bribery). By a given age it was hoped that a man had gained enough life experience, enough wisdom, and enough personal wealth to exercise capable, seasoned judgement while also resisting the material temptation to sell his influence to the highest bidder. By placing such a restriction on the office of Senator, Jefferson likely hoped to ensure that the position, and the legislative responsibilities it carried, would devolve upon men of a certain class and temperament. It thereby seems a fair conclusion that he regarded the Senate as an important element of his frame of government for Virginia. Unlike the members of the House of Representatives, upon which he laid no age restrictions, Jefferson intended all Senators (in theory) to be men of substance and maturity. The upper house was thus to acquire a distinct character and perspective, to be cultivated and channelled to the benefit of the general public.

Though the Senate was the only body within Jefferson’s government to operate under an explicit age restriction, several of the offices that he described in his draft constitution for Virginia were subject to term of service and electoral limits. He determined, for example, that members of the House of Representatives were to be the most responsive – or vulnerable, if you like – to the will of the voting public by making them subject to annual election. In addition to replicating the standard procedure for electing the magistracy of republican Rome, this measure also spoke to existing precedents in Virginia as well as the aspirations of some of the American elite’s British philosophical forbears. Of the former, it perhaps need only be pointed out that the members of the House of Burgesses, established in 1619, had been subject to annual election for over 150 years by the time Jefferson set about creating a new government for Virginia. Maintaining this tradition no doubt served dual purposes; at the same time it ensured the lower house’s strong connection to the electorate, it also provided a note of continuity for Virginians who perhaps needed convincing that a wholly new government was either necessary or desirable. In addition, in a nod to the British precursors of the American Whig tradition, annual elections formed a part of the reform manifesto of the 17th and 18th century Country Party. The members of this political movement, which included statesmen, writers, and aristocrats, favored eliminating the existing seven-year term of the House of Commons and enforcing a single-year term in order to (as with the Roman example) prevent political entrenchment and stave off the growth of corruption. While Jefferson was never much of an Anglophile – he tended to favor the Philosophes of the French Enlightenment – his lifelong efforts to protect and promote the rights of the individual often demonstrated an underlying knowledge of and appreciation for the ideals of the 17th and 18th century British Whig tradition.

The offices of Administrator, Deputy Administrator, High Sherriff and Coroner were also subject to annual election or appointment under the government that Jefferson described, while Senators were to be split into three cohorts, each elected once in every three years. The purpose of these restrictions was, again, to ensure that the office-holders in question could not become embedded in their respective positions via some kind of institutional inertia. Rather than accumulate legitimacy simply by being in office for an extended period, Jefferson intended for the officers of Virginia’s government to face frequent re-evaluation by either the electorate or their chosen representatives. This served symbolic as well as practical purposes. As with the Senators of the current American federal government, Jefferson’s Virginia Senators enjoyed the longest period in office among their contemporaries (three years) as a means of separating them from the shifting tempers of the electorate. Freed from having to seek the people’s approval and support on an annual basis, they could afford to reason and legislate on a longer timeline and make the choices they believed would be ultimately beneficial, if momentarily unpopular. Because Jefferson’s draft constitution proposed to make the General Assembly of Virginia the single strongest branch of the state government, and then divided this body into two constituent elements, there was a clear logic in using explicit electoral limitations such as these to shape the respective characters of the upper and lower houses. Such limitations ensured the emergence of a balance of interests between the Senate and the House of Representatives of Virginia – the former static and sober, the latter dynamic and vital.

The strongest guard against corruption and entrenchment that Jefferson borrowed from his ancient predecessors, however, was also likely the least practical. As aforementioned, all magistrates in the Roman Republic served a one year term upon being elected (with the exception of Censor, who served for 18 months), and were then forced to wait for a period of 10 years before seeking election to the same office. The intent behind this restriction was to prevent individuals from using the knowledge or connections they had gained in order to perpetuate their own career, or from promising future favors in exchange for political support. Jefferson, no doubt conscious that republics were especially vulnerable to influence-trading, populism, and graft, wrote similar limitations into his vision for Virginia’s first independent government. The Administrator and Deputy Administrator, he determined, could serve only one year upon their respective appointment before being forced out of office for the following three years. Delegates to the Continental Congress were similarly limited to one year terms between one year intervals, and High Sheriffs and Coroners were to serve one year terms between five year intervals.

That all of these offices were term-limited implies that Jefferson believed they were at least potentially dangerous if left unchecked. Without knowing for certain, it seems fair to speculate that the length of the interval perhaps related to the power or importance of the office it affected. Sheriffs and Coroners were county-level positions, and thus more likely to exert a tangible effect on the daily lives of most Virginians than any state-level office. Congressional Delegates were on the other end of the spectrum, having the least effect on the day-to-day experiences of the average citizen as a result of their distinctly federal responsibilities. The Administrator and his deputy, reduced in Jefferson’s constitution to being little more than accessories of the state legislature, were potentially powerful but largely contained and thus fell somewhere in between. The assignment of term limits to each of these offices consequently appears to correspond to their relative capability to do harm if left to their own devices. A particularly popular Sheriff in, say, Henrico County might have been able to wreck considerable havoc upon the local justice system as a result of his judicial and law enforcement responsibilities where it not for some kind of limitation on his ability to seek constant re-election. A Delegate to the Continental Congress, though capable of influencing federal legislation to their own ends, to the detriment of the people of Virginia, was perhaps seen to represent a less immediate threat and thus had their freedom less severely checked. The fact that members of the House of Representatives meanwhile suffered under no such limits, a fact which belies the power Jefferson sought to grant them, was likely an admission to basic practicality.

The Administrator and Deputy Administrator comprised between them two positions, to be replaced on a yearly basis. Virginia’s Congressional Delegates, which the Articles of Confederations limited to no less than two and no more than seven, thus accounted for seven vacancies to fill per year at the most. High Sheriffs and Coroners were limited to one each per county, in 1776 accounting for a total of 104 offices across the 52 existing counties that were to be annually filled. On the face of things this seems like a rather tall order, having to fill 113 separate offices every year by election or appointment with qualified individuals. Forcing the electorate to disregard candidates that had served in any of these positions less than one, three, or five years previously no doubt added to the onerousness of the task, but it was at least possible within such an arrangement for a body of veteran public servants to coalesce who could rotate in an out of office as the state constitution decreed. It may perhaps have become cause for frustration, but Virginia was not likely to run out of qualified federal delegates or chief executives. The members of the House of Representatives were to be free from these kinds of restrictions, likely for two simple reasons.

The general lack of constraints he placed upon the lower house and the powers he assigned to it indicate that Jefferson intended the Representatives to be the dominant element in his proposed government for Virginia. They was also to be the most representative and the most responsive, forced to return to the people every October 1st to seek their approval or bear their censure. Placing term limits on the members of the lower house would have harmed its ability to play this role, and accurately reflect the will of Virginia’s voting population. Unlike a Sheriff, which was a potentially effective but mainly administrative position, or a Congressional Delegate, who possessed distant responsibilities but had access to unique opportunities for mischief, a state Representative needed to embody the specific, ephemeral desires of his constituents in order to fulfil his purpose. Jefferson could have conceivably, in 1776, placed partial limitations upon the prospective talent pools – effectively limiting the choice of the electorate – for Virginia’s Sheriffs, Delegates, or Administrators without harming the ability of those offices to function. Similarly limiting the House of Representatives, however, would have wrecked the dynamism and vital energy that was its fundamental raison d'ĂȘtre.

At the same time, the House of Representatives that Jefferson described in his draft constitution was almost certainly too large to sustain term limits without the quality of its membership becoming somewhat deluded. In spite of his frequent and heartfelt exultation of the paramount role to be played by the people within a republican system of government, Jefferson tended toward a somewhat aristocratic view of public service. His passion for the people’s prerogatives, though unquestionably genuine, did not extend so far as to tolerate the election of farmers, butchers, merchants, or artisans to the important offices of state. Legislators, administrators, and even county officials, so members of Jefferson’s social class believed, were required to be men of substance, education, and sober judgement. They were responsible for guiding the ship of state, and so needed to be capable of grappling with any number of complex administrative, legal, and economic challenges while being simultaneously free from the petty distractions of the workaday world.

The draft constitution that Jefferson prepared in 1776 called for a maximum of 300 members to be elected to the lower house of the Virginia General Assembly. Finding 300 men who fit the elite criteria for public service among the approximately 500,000 who lived in Virginia in 1776 would almost certainly have been possible, if not downright easy. Adding term limits to the equation, however, would have complicated matters. With a one year interval between elections there would have needed to be up to 600 qualified individuals fit for election; with a two year interval this expands to 900, and with a three year interval to 1200. This may not sound like a particularly large cohort among a population of half a million, but when one factors in the percentage of slaves, women, and the disenfranchised (who, in addition to being denied the vote were also unable to stand for office) the number of citizens available to sit in Virginia’s House of Representatives shrinks precipitously. Of those, an even smaller number would have likely possessed the qualities that Jefferson and his compatriots demanded of their public servants. To forego term limits was thus to tacitly admit that the kind of men 18th century standards of public service demanded form the substance of Virginia’s lower house were too rare to expect to find in large quantities.