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 18^th 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 18^th 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 17^th and 18^th 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 17^th and 18^th 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 1^st 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'être.

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 18^th century standards of public service demanded form the substance of Virginia’s lower house were too rare to expect to find in large quantities.