Friday, 6 May 2016

Draft Constitution for Virginia, Part XI: the Tyranny of the Grave

The final element of Jefferson’s draft constitution for Virginia to be examined in this series, before what I'm sure certain readers would agree is a long-overdue adjournment, speaks once more to the Sage of Monticello’s particular concern with the influence of property on the social and political health of a republic. As last week’s post examined in some depth, part of what Jefferson evidently aimed to accomplish by redrawing the political map of Virginia in 1776 was a broadening of the public sphere by distributing land grants – and the political responsibilities that accompanied them – to any citizen who qualified. This mass dispersal of property – up to 50 acres per person – also likely represented a first attempt by Jefferson to strengthen the virtue of his fellow Virginians and render them more suitable for republican government in keeping with his personal conviction that people who owned land were more sensitive of their rights and more willing to defend them. In spite of how radical such a provision might appear, it is worth noting that the lands to be distributed were only those left unappropriated or that had been forfeited. The property of Virginia’s planter class – of which Jefferson was a notable member – was not to be seized and reallocated, and thus their wealth was in no danger. Or at least, it was in no danger from that particular provision of Jefferson’s draft constitution. As mentioned previously, there was a second clause in said document which affected the ownership of property in Virginia, and which can most clearly be traced to the Sage of Monticello’s personal convictions rather than the influence of the history or philosophy that formed his education.           

This second clause, located at the end of the section concerned with land and its ownership, simply stated that, “Descents shall go according to the laws of Gavelkind, save only that females shall have equal rights with males.” For those unacquainted with arcane medieval legalese, “descents” should be taken in this instance to mean “inheritance,” referring to the ability of property to be transmitted from one person to another upon the expiration of the former. Gavelkind was in turn a form of inheritance law, practiced in slightly different forms in the English Earldom of Kent and the various fiefdoms of medieval Wales, which mandated that upon death an individual’s property was to be divided equally among their nearest living male descendants. The clause quoted above was thus intended to indicate that, upon the adoption of Jefferson’s proposed constitution, property in Virginia was to be subdivided upon the death of its holder and distributed equally among their children regardless of gender. Unlike the land grants which the draft constitution also authorized, this reform would have affected the wealthy and modest alike, and in time would likely have wrought massive changes to the overall character of Virginia’s culture and politics. Again, this was probably what Jefferson intended, and speaks once more to how fundamentally he sought to reshape the society in which he lived as it transitioned at the dawn of the Revolution from British colony to American state.

The reason that the clause in question represented such a significant alteration to the status quo in Virginia stems from the way inheritance law had theretofore operated. Being in origin an English dependency, Virginia had operated since its foundation in 1609 under a distinctly English Common Law framework. Among the provisions native to this structure of traditions and practices – trial by jury and habeas corpus being two particularly noteworthy examples – was the law of intestacy. The basic principle of intestacy determined that upon the death of an individual whatever remained of their estate once their debts and expenses had been paid became “intestate.” An estate that was intestate was thereafter to be disposed of according either to the laws of inheritance then in force or in accord with whatever testament the deceased individual had seen fit to make. The latter practice, of devising the settlement of property in the form of a will, became law in 1540 with the passage of the Statute of Wills. Prior to this and in instances wherein a will was absent, property was transmitted via the principle of primogeniture, which held that the eldest male-line descendant of the deceased (meaning his or her closest male-descended relative) stood to inherit the latter’s intestate property.

The disposition of property in English Common Law jurisdictions was further affected by the concept of “fee tail” or “entail.” A Norman concept enshrined in English law by the Statute of Westminster (1285), entail was a form of conditional inheritance whereby an estate was declared by a deed – or after 1540 a will – to be the sole property of a given individual “and the heirs of his body.” In practice, because the “heirs of his body” had to be his legitimate children and their direct descendants, the use of entail limited the ability of an estate to be divided or freely disposed of by its owner. An estate held in entail thus existed in a form of trust; rather than belong to its present holder “in free and absolute dominion,” it was theirs only to hold and cultivate until such time as it was to be passed in full to their legal, blood-related heir. Combined with the principle of primogeniture, entail ensured, among other things, that the source of a family’s wealth could not be divided or destroyed, even by its legal owner, but would instead pass from eldest son to eldest son in perpetuity.

In colonial Virginia, the practical result of the continued observance of such hallowed English legal principles was the continued prosperity of the slave-owning planter class. Estates, certainly by Jefferson’s lifetime, were almost all protected by entail from being dispersed, and as each generation of Virginia gentlemen added by purchase to the lands (and slaves) they had inherited, so these protected estates grew in size and the families in question grew in power and prominence. These families – the Lees, the Braxtons, the Harrisons, and the Randolphs, to name a few –wielded tremendous power in the colonial political sphere, partly as a result of the land (and tenants) they controlled, and partly due to their ability to sway or impress the voting public with displays of generosity or extravagance during periods of election. Jefferson was certainly of the same class as these extended clans and enjoyed many of the same advantages, but his perspective on the distinction of Virginia’s landed gentry was affected by slightly different circumstances. Whereas the families named called the Tidewater region (along the Atlantic coastline) their home, where rich soil made plantation agriculture exceedingly profitable, the Jefferson family had settled in the Piedmont region (a plateau extending between the Atlantic coast region and the Appalachians), where rocky, clay-heavy earth and hilly terrain made it much harder to specialize in a single cash-crop like tobacco. Piedmont farmers were certainly capable of amassing wealth based on their ownership of land – the details of Jefferson’s upbringing attests to the many advantages he enjoyed – but they were not, to coin a phrase, “Tidewater rich.” Taking these facts in hand, and noting as well that the affluence of the Tidewater planters had allowed them to dominate the House of Burgesses for generations, it is perhaps somewhat easier to understand why protecting familial land holdings might not have seemed quite as important to someone like Jefferson, and why he so often proved willing to attack the root of the Virginia elite’s inherited wealth.

While it generally isn't the policy of this series to project forward from the time a document under examination was first made public, in this case a slightly broader view seems necessary in order to establish Jefferson’s avowed hostility toward inheritance laws that tended to concentrate wealth in the hands of the few. Law reform was a favored subject of the Sage of Monticello – one he revisited often as a legislator, governor, and president – and entail and primogeniture seemed particularly to gnaw at his sense of what was just and equitable in a republican society. Partly, this seemed to be for personal reasons. In 1774, Jefferson sought to dispose of 1200 acres that had been entailed to him in by his wife’s father, the lawyer and planter John Wayles (1715-1773). He accordingly applied to the House of Burgesses to break the entail – the only legal means to dispose of the stipulation – and received a ruling in his favor. Unfortunately the order also required the signature of the Governor in order to become valid; likely as a consequence of his then-ongoing conflict with the lower house of the General Assembly, Lord Dunmore never got around to approving Jefferson’s request. In spite of the fact that he was the sole legal owner of the land in question, established law thereby prevented him from selling it as he pleased. There was, Jefferson considered, something profoundly unjust about this turn of events, made all the more galling by the fact that entail chiefly benefited a very small percentage of the colonial population.

When Jefferson returned to Virginia in September, 1776 to take his place among the newly-elected House of Delegates (the lower house of the General Assembly under the state’s new constitution), he accordingly set about proposing bills for the abolition of both entail and primogeniture inheritance. Though both measures were successfully adopted, such an open attack upon the prerogatives of the landed elite could not help but raise the ire of certain of Jefferson’s planter contemporaries. Edmund Pendleton (1721-1803) and Carter Braxton (1736-1797), both Tidewater planters (and the former an ally of Jefferson), raised strenuous objections to the Sage of Monticello’s evident disregard for their accustomed preeminence. An ideological conservative, reluctant revolutionary, and one of the largest landowners in Virginia, Braxton went so far as to declare Jefferson’s reform attempts, “Chimerical Schemes,” and, “wild flights of these fanciful Genius’s.” Pendleton, who was at heart a moderate, proved more amenable, though he still suggested that Jefferson allow the elimination of entail to be voluntary on the part of property owners and permit the oldest son to inherit twice what was owed to his siblings. Jefferson refused to countenance either suggestion, offering in the latter case to allow Pendleton’s proposition to go forward only if it could be proved that the eldest son in question consumed twice as much food as his siblings. Stymied, Pendleton gave way, and entail and primogeniture were thereafter abolished in the Commonwealth of Virginia. This represented a significant victory for Jefferson in his ongoing attempt to reform the society and culture of Virginia along distinctly republican lines. Not only were two legal traditions which prevented a person the free exercise of their property abolished, but a means by which a pseudo-aristocratic party had concentrated and preserved their wealth was dismantled. That being said, even such a well-earned success didn’t signify the end of Jefferson’s personal interest in property, inheritance, and intergenerational relations. 
Many years later, in the late 1780s, the Sage of Monticello still actively ruminated on the significance of inheritance laws that privileged the rights of the dead over the needs of the living. In a letter dated September 6th, 1789, written during the last months of his residency in Paris as Minster to France, Jefferson communicated to friend, frequent collaborator, and fellow Virginian James Madison (1751-1836) a number of his concerns to that end. This missive, a kind of philosophical reflection on the moral and legal significance of debt, testifies quite effectively to the depth of thought the Sage of Monticello was inclined to devote to the subject of generation obligation and its relationship to personal liberty. Far beyond attacking concepts like inherited debt or entail out of a need to rationalize personal enmities or memorialize past victories, Jefferson’s approach seemed to come from a place of genuine concern for the fate of his distant countrymen.

Unlike the European fiefdoms he had observed in his extensive travels, many if not most of which permitted the excessive accumulation of wealth and the inheritance of crushing debt, Jefferson was anxious that the United States, then in the midst of establishing a new government under a new constitution, take steps to prevent a similar fate from unfolding. “I set out on this ground,” Jefferson wrote with characteristic confidence, “Which I suppose to be self evident “that the earth belongs in usufruct to the living;” that the dead have neither powers nor rights over it.” In this case the term “usufruct” was intended to refer to the legal right to own a thing and derive profit from it. The Sage of Monticello also declared in the same letter, in echo of this sentiment, that, “The earth belongs to the living and not to the dead [,]” and that, “One generation is to another as one independent nation to another.” Clearly though his successful repeal of what he regarded as prejudicial inheritance laws in Virginia was some 15 years in the past, the line of thought from which his efforts had sprung had hardly been laid to rest. Indeed, the moral component of intergenerational relations would remain a topic of contemplation for Jefferson for the better part of his life.     

 For those of you wondering what in God’s name the last several paragraphs have to do with Jefferson’s draft constitution for Virginia, please allow me to connect the dots. From the above outline of Jefferson’s thoughts and actions relating to inheritance law in Virginia – and the general principle of intergenerational obligation – it should hopefully be clear that the way one generation interacted with the next and the practical effects that resulted in the larger culture was a topic of great concern to the Sage of Monticello. Debt, responsibility, privilege, freedom; all of these concepts were wrapped up in the way pre-Revolutionary Virginia law perceived the disposition of property. Entail was a manifestation of this perception. Indeed, it would seem to say a great deal about a culture that it was willing to permit the concept of private property to be circumscribed in such a way that benefited an already favored minority. Jefferson recognized the injustice inherent in supporting such a practice, for personal as well as philosophical reasons, and acted accordingly. In spite of resistance from powerful colleagues who stood to benefit from the perpetuation of entail and primogeniture, the Sage of Monticello managed to successfully orchestrate the abolition of both these long-protected legal norms, in the process helping to set in motion the transformation of Virginia society into one more in line with his vision of the ideal republic. In spite of this victory, Jefferson was still contemplating the impact of inherited obligation 15 years later, at a time when the United States was in the midst of another drastic transformation, and manifested sincere concern that every generation of Americans should not be burdened by the debts and dictates of their predecessors.

The clause of Jefferson’s draft constitution for Virginia quoted above would seem to slot quite neatly into this timeline of reflection and reform. For reference, it read in full, “Descents shall go according to the laws of Gavelkind, save only that females shall have equal rights with males,” and was devised at some point during the late spring and early summer of 1776. This would place its point of origin several years after Jefferson’s 1774 attempt to break the entail on some of his property and several months before his successful attempt at property reform in September, 1776.  It should be noted – as no doubt someone will have noticed by now – that while this sentence would have abolished the practice of primogeniture in Virginia it would not have prevented individuals from freely disposing of their property in a will. The law of descents would only have applied to estates that were intestate wherein no will was present. A wealthy gentleman of Virginia could thereby not have been prevented from leaving all of his property (including land and slaves) to his firstborn son so long as he made a testament to that effect. This clause would also seem not have been devised with the explicit intent of disqualifying deeds of entail. Read plainly, it would only have shifted the default law of inheritance in Virginia from primogeniture to absolute gavelkind. In light of Jefferson’s later attempt to have entail legally nullified in Virginia, this constitutional provision would seem a half-measure at best.
    To this criticism – not without merit – it must be said that a constitution is not quite the same things as a regular law. A bill that is passed in the regular business of a legislature possesses the full force of a state’s authority, enjoys the use of all the mechanisms of state enforcement, and remains in operation until explicitly repealed or contradicted. Laws devised and supported in this fashion are intended to address the ever-changing needs of the population they act upon. A prime example of this principle can be found in the history of the Homestead Act (1862) and its various successors. Passed during the opening phase of the American Civil War, the original Homestead Act encouraged settlement in the nation’s western extremities by promising qualified applicants 160 acres of federal land in exchange for its cultivation and improvement. This endeavour on the part of the United States government to both populate the American West and meet the desire for self-sufficiency of many of its citizens proved highly successful, and was supplemented by subsequent acts passed in 1866, 1873, 1904, 1909, 1916, and 1930. In 1976, however, a shift in federal priorities led to the passage of the Federal Land Policy and Management Act, effectively abolishing homesteading. Though the granting of federal land to prospective settlers had by then been going on for over a century, the Homestead Act and its successors were deemed no longer advantageous and done away with. This, in essence, is the potential fate of all regular laws; they are passed, they are in force, and they are repealed or replaced. Jefferson’s successful endeavour to legislate entail and primogeniture out of existence in Virginia was theoretically subject to this same lifecycle. Subsequent generations of Virginia lawmakers could have reinstated either or both of these practices, perhaps in greatly strengthened forms, without in any way violating existing legal norms or procedures. Doubtless Jefferson would have been dismayed by such an eventuality, though he surely would not have questioned the right of a sovereign people to dispose of their laws without undue regard to the wishes of those that preceded them.       
But constitutions are not just laws. By framing the essential form of a government and declaring the powers it is to possess, a constitution effectively establishes the legal norms that come to define its operation and sets the prime example for all subsequent acts of law formed under its authority. A constitution is thus, as the saying goes, “the supreme law of the land,” and thus acts as the yardstick by which all other laws are measured for their compliance or contradiction. A statute which violates the provisions laid down in a constitution is thereby rendered null and void, regardless of the legislative support it received in its passage. That being said, the process of determining the compliance of regular law with constitutional law is not an exact science. Because a constitution must remain reasonably flexible if it hopes to remain in force for very long, constitutional provisions and clauses tend to be sparingly phrased so as to allow for some degree of continuous interpretation. A constitution may therefore fairly be characterized as a compendium of laws deemed absolutely essential to the operation of a given form of government and ideals intended to guide the formation of all subsequent laws. Constitutional provisions which are too specific can potentially rob successive generations of their rightful ability to determine how best to approach a given issue, while an abundance of imprecision can alternately lead to the fundamental form and spirit of a constitution being gradually undermined. There is a balance to be struck, as in so many things, and locating it represents an exceedingly challenging task for any prospective framer.

It seems clear enough, based on his subsequent actions, that Jefferson was by the spring of 1776 inclined to eliminate the practice of entail in Virginia. The fact that he did not attempt to do so by including an explicit provision in his draft constitution was likely not the result of a lack of interest or initiative on his part, but rather a reflection of his own attempt to create a frame of government that was appropriately balanced and enjoyed a hope in hell of being ratified. Eliminating entail by constitutional fiat would almost certainly have met with significant resistance from the planter class who were its chief beneficiaries, and who had long dominated the General Assembly. Doubtless Jefferson did not fear such opposition, in light of later battles with his planter colleagues, but it may well have been his determination that the debate which would inevitably have following the introduction of his draft constitution was not the place to hash out certain of Virginia’s simmering social conflicts. Though often celebrated and/or decried for his radical politics, Jefferson was also a canny strategist who understood better than most gave him credit when to exercise caution. Keeping his distaste for entail – and its larger cultural ramifications – out of what was supposed to be the new governing charter of Virginia may thus have been a tactical consideration on the part of the Sage of Monticello in order to best ensure its successful adoption.

Alternately (or perhaps additionally), Jefferson may have chosen to exclude a prohibition of entail from his draft constitution because he felt it would have been hypocritical of him to do otherwise. Granting that he was, in the course of his life, no stranger to hypocrisy, it may have seemed inappropriate to insert a declaration in the paramount law code of Virginia banning a practice that itself was the target of disdain because it held individuals to legal and personal standards not their own. In fairness, this is essentially what all constitutions do; set a standard which all succeeding generations must adhere to. But for Jefferson to disqualify a practice that he vilified because it held the living to standards set by the dead by in turn setting a standard that would be followed long after his own demise might perhaps have been seen as so mockingly insincere as to be beyond contemplation. Proposing legislation to abolish entail, as the Sage of Monticello did in September, 1776, no doubt appeared to be a preferable alternative because it would have allowed for a debate on that issue alone. Rather than tie the success of his draft constitution to the willingness of a particular class of men to accept a provision that attacked one of the roots of their wealth, the continuation of entail could be discussed and voted on at a time and place when nothing more was at stake than that. In yet another potential sighting of Jefferson as political strategist, it is also possible that he regarded the provision of his draft constitution quoted above as reasonably sufficient to eliminate the practice of entail in the long term.

As aforementioned, constitutions act as yardsticks by which the laws passed under their authority are measured. This process of measurement is both ongoing and often highly interpretive, and the results can often seem unexpected or abstract to the casual observer. Several clauses of the United States Constitution – the Necessary and Proper Clause and the Full Faith and Credit Clause, to name only two – have often been construed in such a way as to validate government actions or inactions that a literal reading would not otherwise support. Though constitutional interpretation can potentially lead to dangerous and unintended distortions of codified law, the process is undeniably necessary if the “supreme law of the land” is to continue to maintain its relevance. While it may not appear that Jefferson’s attempt to make Gavelkind the default form of inheritance in Virginia would have affected property law in any other way, the interpretive lens of succeeding generation might have perceived otherwise. Had Jefferson’s constitution been successfully adopted without significant alterations, all property that was not devised by a final testament or entailed would have been divided equally among the heirs of the deceased. If, some years following the establishment of the government Jefferson framed in 1776, a suit had arisen between the heirs of a given estate, and if that suit subsequently appeared before the Court of Appeals, it seems entirely likely that the relevant provision of the state constitution effecting inheritance law would be consulted. Acknowledging that said provision declared Gavelkind to be the default form of inheritance in Virginia, the Justices of the Court of Appeals might reasonably have asked themselves what the intent behind such a clause was meant to be.

The clause begins with the word “descents.” Was this intended to signify that it applied only to the operation of the law of descents, or could it be construed to affect that broader principle of inheritance? If the fundamental, catch-all law by which property was to be transferred upon death necessitated an equal division among proven heirs, did not the perpetuation of a practice like entail constitute an exception? And if so, did not this exception confer a unique privilege upon a particular group? Did the constitution’s explicit support for Gavelkind inheritance not represent a stated intention to promote equality of inheritance? And if so, did bestowing a unique privilege upon a particular group run counter to this intention? Perhaps not all of these queries would have arisen within the scope of a single case, but it is not difficult to imagine that many of them would eventually have occurred to the relevant judicial authorities. Generation upon generation of justices, building upon the investigations and debates of their predecessors, might thus have eroded the constitutional justification for entail to the point of it being entirely nullified. This would certainly not have been a rapid process, and the end result would have been left largely up to chance. All the same, it would have been a nonintrusive way to address inheritance law in Virginia, and perhaps most important of all it would have allowed Virginians to decide for themselves which practices and customs were in keeping with their social, moral, or legal ideals. Jefferson’s constitution would, in this case, act as a legal and philosophical framework that could effectively shape the outlook of proceeding generations without appearing overbearing or rigidly proscriptive.

            Though in fairness the above-described scenario is not overly likely to have been the case – and is practically impossible to validate anyway – it is nonetheless important to think about the long-term effects and the core intentions of a constitution like the one Jefferson proposed. To attempt to formulate the fundamental legal framework of a given society is to take on a monumentally complex task. The number of elements to consider, and how they interact, and the level of specificity, and the lasting implications; successfully pulling together all of these pieces represents a staggering undertaking for even a well-resourced committee of scholars and experts. That Thomas Jefferson attempted to craft a constitution for his beloved Virginia by himself, and arrived at a reasonably balanced (if still flawed) result speaks volumes about the man’s raw ability and ambition, as well as the scope of his vision for republican America. At the same time, the document itself arguably serves as an effective primer for Jeffersonian democracy. The provisions and clauses he saw fit to include, the structures he embraced, and the language he deployed all give evidence to how 33-year-old Thomas Jefferson understood power, liberty, sovereignty, law, morality, and justice. Most assuredly his views on any number of these concepts changed over the course of his life, but being able to understand what he felt were the most important elements of a stable, successful republic at such a pivotal moment in his life and career is potentially invaluable to developing a thorough understanding of Jefferson himself.

    But of course that’s just my opinion. See for yourself:

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