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

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

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

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

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

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

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

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

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

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

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

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

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