The Revolutionary History of Virginia

Edmund Randolph

[1809 / Part 4 of 5]

Although undoubtedly, Cornwallis was sooner or later destined for Virginia; yet was it a striking peculiarity of events, which brought him hither at the time of his coming, and under circumstances, which at the beginning of the year, he little apprehended. But whether from a want of skill, the necessity of obedience to superior command, or a misconstruction of orders, he took his final position at York Town; the location of him at that spot, was pregnant with his overthrow. Washington's anxiety seems to have been constantly on the watch, and daily employed in admonishing La Fayette lest Cornwallis should escape from Virginia. In York therefore, he was invested; and the elements defeated his only attempt to escape. We are not unwilling to confess, that without the French fleet, and perhaps without the French army, our success might not have been so quick and so complete in producing the capitulation of Cornwallis and his army. But our pride is supported by justice, when we assert, that America was competent to her own salvation. Had not the enemy discovered this truth, the abandonment of his hopes after the downfall at York Town, would not have accorded with his exasperation against unnatural rebels, nor would it have been much promoted by a dread of our ally, who was dragged into the war by a regard to interest, not to the sacredness of our cause.

Having thus dispatched in brief, the military part of the continental history, I resume the peculiar one of Virginia from the period, at which that continental history was first taken up; intending to carry down to the adoption of the constitution of the United States, what remains to be executed of my original plan.

When the disposition of the people, as exhibited by their representatives could not be mistaken, Henry had full indulgence of his own private judgment, and he concerted with Nelson, that he, Nelson, should introduce the question of independence, and that Henry should enforce it. Nelson affected nothing of oratory, except what ardent feelings might inspire; and characteristic of himself, he had no fear of his own with which to temporize; and supposing that others ought to have none, he passed over the probabilities of foreign aid, stepped lightly over the difficulties of procuring military stores, and the inexperience of officers and soldiers, but pressed a declaration of independence, upon what, with him, were incontrovertible grounds, that we were oppressed; had humbly supplicated a redress of grievances, which had been refused with insult; and that to return from battle against the sovereign, with the cordiality of subjects was absurd. It was expected that a declaration of independence would certainly be pressed, and for obvious reasons Mr. Henry seemed allotted to crown his political conduct with this supreme stroke. And yet for a considerable time he talked of the subject, as being critical, but without committing himself by a pointed avowal in its favor, or a pointed repudiation of it. He thought that a cause, which put at stake the lives and fortunes of the people, should appear to be their own act, and, that he ought not to place upon the responsibility of his eloquence, a revolution, of which the people might be wearied after the present stimulus should cease to operate. But after sometime he appeared in an element for which he was born. To cut the knot, which calm prudence was puzzled to untie, was worthy of the magnificence of his genius. He entered into no subtlety of reasoning; but was roused by the now apparent spirit of the people, as a pillar of fire, which notwithstanding the darkness of the prospect, would conduct to the promised land. He inflamed, and was followed by the convention. The vote was unanimous for independence, except in the instance of Robert Carter Nicholas, who demonstrated his title to popularity, by despising it, when it demanded a sacrifice of his judgment. He offered himself, as a victim to conscience, being dubious of the competency of America in so arduous a contest. He alone had fortitude enough to yield to his fears on this awful occasion, although there was reason to believe, that he was not singular, in the conception. But immediately after he had absolved his obligation of duty, he declared, that he would rise or fall with his country, and proposed a plan for drawing forth all its energies, in support of that very independence. May every man, acting like him, receive the like reward of an increase of popularity, which in the opinion of time serving parasites, would be annihilated by such boldness. The principles of Paines pamphlet, now stalked in triumph under the sanction of the most extensive, richest and most commanding colony in America. The event had been vehemently desired by a majority of congress, who would not venture to originate it with themselves. They were aware of its favorable influence on the affairs of America, with respect to foreign nations. As soon as the convention had pronounced the vote of independence, the formation of a constitution or frame of government followed of course. For with the royal authority, the existing organs of police and the laws ceased, and the tranquillity of society was floating upon the will of popular committees, and the virtue of the people.

To this work, then unprecedented in America, talents were requisite of a higher order, than those, which could foment a revolution. Patriotism, firmness and a just foresight of the dangers to be encountered, were sufficient to dissolve an empire. But the deepest research which had then been made here into the theory of government, seemed too short for those scenes, which the new order of things was to unfold, and for those evils, which human passions, with new opportunities and solicitations must begat.

Mr. Jefferson, who was in congress, urged a youthful friend in the convention, to oppose a permanent constitution, until the people should elect deputies for the special purpose. He denied the power of the body elected (as he conceived them to be agents for the management of the war) to exceed some temporary regimen. The members alluded to, communicated the ideas of Mr. Jefferson to some of the leaders in the house, Edmund Pendleton, Patrick Henry, and George Mason. These gentlemen saw no distinction between the conceded power to declare independence, and its necessary consequence, the fencing of society by the institution of government. Nor were they sure, that to be backward in this act of sovereignty might not imply a distrust, whether the rule had been wrested from the king. The attempt to postpone the formation of a constitution, until a commission of greater latitude, and one more specific should be given by the people, was a task too hardy for an inexperienced young man.

A very large committee was nominated to prepare the proper instruments, and many projects of a bill of rights and constitution, discovered the ardor for political notice, rather than a ripeness in political wisdom. That proposed by George Mason swallowed up all the rest, by fixing the grounds and plan, which after great discussion and correction, were finally ratified.

The celebrated notes on Virginia have since become the vehicle of the former objections of its author made in limine.

"When the enemey shall be expelled from our bowels, when peace shall be established, and leisure given us for intrenching within good forms the rights for which we have bled, let no man be found indolent enough to decline a little more trouble for placing them beyond the reach of question, if anything more may be requisite to produce a conviction of the expediency of calling a convention at a proper season, to fix our form of government," etc. "The ordinary legislature may alter the constitution itself." There are indeed defects in it of magnitude; and there is no doubt, a power resident in the people to change it, as they please. If Mr. Jefferson's observations have contributed to some degree of restlessness under it, they ought if just to be adverted to. They have been disarmed of the possibility of mischief, by the solemn recognitions, in our courts of the validity of the constitution. It would be useless to revive a discussion, which has been thus put to sleep; though it may be yet asked, whether the confirmation of the people by their acquiescence for so many years, be no argument against the unhinging of such various authorities, which have been exercised under it, and possibly of some rights, which have been derived from it? Is it nothing, that independence was established, with as little premonition to the people, as the constitution was; and that the constitution, considered only as temporary, until a more legitimate one shall be adopted (which is the extent of his demand) can no more be revoked by the legislature, which is the creature of it, appointed to execute it, than the trustees of power can transcend their instructions? But happily, practical utility will always exterminate questions, too refined for public safety.

It has been often doubted too, whether a written constitution has any superiority over one unwritten. This is a point of comparison between the English constitution, and that of Virginia. An unwritten constitution can, upon the appearance of a defect, be amended, without agitating the people. A written one is a standing ark, to which first principles can be brought on to a test. Whatever merit is due to either opinion, it should not be forgotten, that the spirit of a people will in construction frequently bend words seemingly inflexible, and derange the organization of power. This has happened in Virginia, where the line of partition between the legislative and judicial department has been so remote from vulgar apprehension, or plausible necessity has driven such consideration before it.


Bill of Rights


The bill of rights and the constitution are monuments which deserve the attention of every republican, as containing some things which we may wish to be retrenched, and others, which cannot be too much admired.

The declaration in the first article in the bill of rights, that all men are by nature equally free and independent, was opposed by Robert Carter Nicholas, as being the forerunner of pretext or civil convulsion. It was answered, perhaps with too great an indifference to futurity, and not without inconsistency, that with arms in our hands, asserting the general rights of man, we ought not to be too nice and too much restricted in the delineation of them; but that slaves not being constituent members of our society could never pretend to any benefit from such a maxim.

The second article, derives all power from the people, and declares magistrates to be always amenable to them.

The third article affirms the supremacy of a majority in a community.

The fourth explodes an inheritance in office.

The fifth separates the legislative, executive and judicial functions, and reduces the members of the two former at fixed periods, to private stations.

One part of the sixth provides for the freedom of elections, and another confers the right of suffrage on all having sufficient evidence of a permanent common interest with, and of attachment to the community. But it did not intend to leave this right to the will of the legislature according to capricious views of expediency.

It reserved a more specific provision for the constitution. The seventh against the suspension of laws by any other authority than that of the representatives of the people was suggested by an arbitrary practice of the king of England before the revolution in 1688. The eight reenacts in substance, modes for defence, for accused persons, similar to those under the English law.[] The ninth against excessive bail and excessive fines, was also borrowed from England with additional reprobation of cruel and unusual punishments.

The tenth against general warrants was dictated by the remembrance of the seisure of Wilkes's paper under a warrant from a Secretary of State.

The eleventh preserving the trial by jury was not considered as a mandate to legislatures without the possibility of exception.

The twelfth, securing the freedom of the press, and the thirteenth, preferring militia to standing armies were the fruits of genuine democracy and historical experience.

The fourteenth prohibiting the erection of a government within the limits of Virginia proceeded partly from local circumstances; when the charter boundaries of Virginia, were abridged by royal fiats in favor of Lord Baltimore and Lord Fairfax, much to the discontent of the people: and partly from recent commotions in the west.

The fifteenth, recommending an adherence and frequent recurrence to fundamental principles, and the sixteenth, unfettering the exercise of religion were proposed by Mr. Henry. The latter, coming from a gentleman, who was supposed to be a dissenter, caused an appeal to him, whether it was designed as a prelude to an attack on the established church, and he disclaimed such an object.

An article prohibiting bills of attainder was defeated by Henry, who with a terrifying picture of some towering public offender, against whom ordinary laws would be impotent, saved that dread power from being expressly proscribed.

In the formation of this bill of rights two objects were contemplated: one, that the legislature should not in their acts violate any of those cannons; the other, that in all the revolutions of time, of human opinion, and of government, a perpetual standard should be erected, around which the people might rally, and by a notorious record be forever admonished to be watchful, firm and virtuous.

The corner stone being thus laid, a constitution, delegating portions of power to different organs under certain modifications was of course to be raised upon it. The most enlightened in the convention confessed their want of perfect information, while some who were absorbed in their inveteracy against Great Britain, condensed every merit of such a composition in a total abhorrence of the British constitution; not one trait of which would they adopt, unless it had been so long naturalized in practice, as to give it the complexion of Virginian growth. Thus custom and habit, revolting against the pruning knife of reformation, transplanted into the constitution of Virginia many valuable things, which perhaps might have been discarded, had they not previously appeared in a Virginian garb. A governor therefore, a senate, and house of delegates were the more easily admitted, from their resemblance to ancient arrangements under the regal government. But this fluctuation between old prepossessions and recent hatred, destroyed a solicitude for a diligent extraction of whatsoever good might be found in the British constitution, or for a careful rejection of some improprieties to which time had reconciled us.

After creating the office of governor, the convention gave way to their horror of a powerful chief magistrate without waiting to reflect, how much stronger a governor might be made, for the benefit of the people, and yet be held with a republican bridle. These were not times of terror indeed, but every hint of a power, which might be stigmatized, as being of royal origin, obscured, for a time, a part of that patriotic splendor with which the mover had before shone. No member, but Henry, could with impunity to his popularity, have contemned, as strenuously as he did for an executive veto on the acts of the two houses of legislation. Those, who knew him to be indolent in literary investigations, were astonished at the manner, in which he exhausted this topic, unaided as he was believed to be, by any of the treatises on government, except Montesquien. Amongst other arguments he averred that a governor would be a mere phantom, unable to defend his office from the usurpation of the legislature, unless he could interpose on a vehement impulse or ferment in that body; and that he would otherwise be ultimately a dependent, instead of a coordinate branch of power. His eloquence, however, had an effect, only personal to himself:---it only stopped the wheel of popular favor, while as to him in this respect, it was inclining to roll backwards.

It may surprize posterity, that in the midst of the most pointed declamations in the convention, against the inequality of representation in the British house of commons, it was submitted to in Virginia, without a murmur, and even without a proposition to the contrary. The fact was, that the counties to the eastward of the blue ridge, in which that inequality was the most glaring, were too numerous to be irritated, and it was tacitly understood, that every body and individual came into the revolution with their rights, and was to continue to enjoy them as they exixsted under the former government, except in the example of the antiquated and reduced borough of James Town, and the College of William and Mary, which were now to be stripped of the honors of representation.

That the qualification of electors to the general assembly should be restricted to freeholds was the natural effect of Virginia having been habituated to it for very many years, more than a century. The members of the convention were themselves freeholders, and from this circumstance felt a proud attachment to the country in which the ownership of the soil was a certain source of comfort. It is not recollected that a hint was uttered in contravention of this principle. There can be no doubt, that if it had been, it would have soon perished under a discussion.

The elementary idea of the right of suffrage in the election of a legislative deputy, is that the elector possess as nearly as may be, freewill and a common interest with the persons to be represented. Were we to suppose a society small enough to be managed by a pure democracy, every member of it, having free will would have an equal vote. Not that a single subject would be committed to the charge of the elected, but because, notwithstanding the variety of rights, which some individuals might possess, (for example, although besides the rights merely relative to their persons, to which all are equally entitled, others may have other rights in property, which may be affected by legislation,) yet the difficulty, if not impracticability of graduating them in a fit ratio, would impose upon the society the necessity of making some general compromise among the pretensions of the whole, by acting upon a conjecture, in the gross, that all have the same interest. It would concede nothing in the argument concerning universal suffrage, were it to be added, that if only a single source of suffrage were to be consulted, the equal interest of all in the preservation of merely personal rights, would stand most forward for acceptance.

However the interests of the members of every civilized society are various, some of them possessing rights merely personal, others those arising from property, the latter of which require protection and watchfulness, as much as the former. Here, too, the impracticability of a due graduation is equally strong. It does not follow that the same gross rule it to be observed, since the refusal to adopt it might amount to a stoppage of the movements of the democrary; for to select among rights, might exclude some, who did not possess them. The gross rule already stated is therefore necessarily adhered to. In this dilemma no solution presents itself but to allow to each society the right of establishing that qualification, which approaches nearest to the common interest which is the desideratum. Compare then the rights of suffrage, founded on permanent property with that founded on the contribution of revenue in the way of taxes, or of personal service in defence of the country.

I am not unapprized, that circumstances may perhaps exist, in which this attention to a common interest may require a more latitudinary right of suffrage, than that accompanying a freehold; but the supposition of such circumstances may at present be laid aside. The choice in the comparison may be contrasted thus: With a freehold a man is bound to defend his country; and must pay at least, indirect taxes. But a freehold fixes a man to his country more than a merely personal or moveable right, which travels with him at any instant, and in any direction. Alienations of land cannot be so rapid as the transfer of a personal chattel. There is consciousness of independence, growing from the knowledge that personal labour expended upon the soil will raise the possessor above want. The possession of soil, naturally turns the attention to its cultivation, and generally speaking, men, who are occupied by labour, in the country are more exempt from the vices prevailing in towns. Experience in America cannot be peremptorily affirmed to be decisive either way; but it has shewn one evil at least, of which freeholders have afforded but few instances; combinations have been formed with more ease among those who have freeholds than among those who have them not.

The sarcasm contained in the associating of the title of George the third, as king of Great Britain and Ireland, with that of Elector of Hanover, was perhaps the littleness of a partizan, rather than the dignity of a nation in arms. Its apology must be sought in the high-toned temper of a revolution. In England the originator of money-bills only was interdicted to the second branch of legislation. Our jealousy extended the interdiction to the unreasonable exclusion of the senate from the origination of any law.

By a further analysis of the constitution, a lesson will be taught, that the most expanded mind, as that of George Mason's was, who sketched the constitution, cannot secure itself from oversights and negligencies, in the tumult of heterogeneous and indistinct ideas of government, circulating in a popular body, unaccustomed to much abstraction

The choice of a governor was lodged in the house of delegates and senate, exercising a concurrent vote. These could not fail to be formidable to him, by his dependence for an annual election, which could be made of the same person, only for three successive years in a term of four, for the quantum of salary, and the terrors of impeachment. He was clogged with a council of state, who were to be elected by that assembly, and to court them for their favor, on the triennial ostracism of two of them. Instead of permitting to the assembly the power of instituting and abolishing courts of law according to the calls of the times; they were improvidently trammelled in respect to their reforms, by inserting in the constitution as a species of favorite courts of special denominations.

The subordinate business of Virginia next received the attention of the convention.

Two different works were established at publick expence for the manufacture of salt.

The common law of England, all statutes and acts of parliament, made in aid of the common law prior to the fourth year of the reign of King James, the first, of a general nature, and not local to that kingdom, together with the several acts of the general assembly, then in force, so far as they might consist with the several ordinances, declarations and resolutions of the general convention were considered as in full force. In what books and at what dates the common law was to be found, how real and necessary improvements and corrections by statutes, posterior to that era were to be neglected, while ancient rigor was to be enforced, was left to the discretion of the judges.

The British ministry had threatened our Western frontiers with the ravages of Indian warfare, and John Connolly had been the emissary of Dunmore to engage their tomahawk in immediate massacre. The convention to divert their vengeance did not scruple to open a treaty for two hundred of their warriors, who were to march to the assistance of our regular forces on the eastern quarter. Nor ought they to have scrupled; so plainly distinguishable was the morality of our purely defensive conduct from that which for offence could let loose the horrors of savage warfare.

On the petition of one Richard Henderson and his associates, a great question in the law of nations as applied to America was agitated and decided by the convention; whether a purchase by individuals of lands, to which the Indians claimed title, by their manner of occupancy was binding upon Virginia, within whose limit they lay. She in terms annulled every such purchase not confirmed by the government existing at the time. She supposed, that it was no less absurd, to recognize the extravagant hunting rights of savages, than the idle assumption of the pope to grant the Western World between two nations. Henderson's party thought, that for western lands, the present was a moment of pure indifference, or that the policy of conciliating American citizens would be instrumental in their gratification. But in both were they disappointed. Virginia persisted in denying the principle of such titles, as under the law of nations. The charters and practice under them had preoccupied the subject.


The convention proposed to Pennsylvania a temporary boundary, to assuage the heat, which the proprietary governor of that province from interest, and Dunmore from rancour to Virginia, had contrived to raise between them.

The persons, nominated as candidates for the office of governor, were Patrick Henry, Thomas Nelson the president, and John Page, a member of the royal council. Nelson had long been secretary of the colony, and ranked high in the aristocracy who propagated with zeal the expediency of accommodating ancient prejudices, by electing a man, whose pretensions to the chief magistracy, were obvious from his now being nominally the governor under the old order of things; and out of one hundred and eleven members, forty-five were caught by the desire of bringing all parties together, although Mr. Nelson had not been at all prominent in the revolution. From every period of Henry's life, something of a democratic and patriotic cast was collected, so as to accumulate a rate of merit too strong for this last expiring act of aristocracy.

Page had the virtue and felicity, though enrolled from birth, fortune and station in the aristocratic ranks, to enjoy the confidence of every good man, and to be respected even by the bad, whether a royalist or republican.

General Charles Lee took an early opportunity, after the introduction of the new government, of expressing to governor Henry his anxiety to see the title of excellency, which had been appropriated to former governors, who were not deputies, buried in the revolution. Some titles designating offices, force themselves into popular language; while others, which are pompous distinctions having no intelligible analogy to the duties of the office have been created by flattery. It is natural that a governor or a judge should hear his name coupled with his office: but Excellency and honorable spring from vague allowances of merit, as necessarily attached to certain posts. It was expected at the commencement of our revolutionary government, that these gaudy trappings would be abandoned. They were retained indeed by usage, not by any authoritative recognition; nor yet from any admiration of the empty baubles in the country of our origin, or an antirepublican tendency in the people; but they may be ascribed to a degree of pride, which would not suffer the new government to carry with it fewer testimonies of public devotion, than the old. This is verified by the total contempt of trifles by the officers themselves.

At the beginning of this year, the town of Norfolk, the fine harbour of which on Elizabeth river, and its neighborhood to the outlet of James river into the bay of Chesapeake destined in time to be the most distinguished emporium in the colonies south of Potomack river, was destroyed by fire. Even when the conflagration was but of recent date, impartiality could not decide, who were its authors. The Americans dwelt with bitterness on this outrage on the laws of civilized nations, imputed to the British, while these retorted the charge of, at least, promoting the progress of the havoc when it might have been stopped but for their studied interference in carrying it to its greatest height. The blame was that of neither party exclusively. The enemy embittered with their discomfiture in Norfolk and its vicinity, were strenuous in combining revenge with the scattering of terror. The Americans had fancied, that it would pamper the enemy, if such a station and asylum, as Norfolk was to them under the cover of their navy, should be broken up; and the convention with the concurrence of Colo. Robert Howe, the then commander of the Virginia forces, ordered the destruction of the remainder of the buildings, after the fire had raged for some days. A popular assembly and an unexperienced field-officer were thus the dupes of a momentary impulse.

Virginia counting with certainty on the unquenchable spirit of America, and boyed up with hope, emitted large sums of paper money, without the pledge of adequate specific funds for its redemption. As a medium it circulated freely, and its conveniences resembled the facilities of that struck by the old government. We believed, because from enthusiasm we felt, what reason would have pronounced to be impossible, that good faith would at last redeem with an equivalent in specie, every paper dollar according to its nominal import, which the utmost industry of the printing presses and the extreme of public necessity would produce. A fatal error for many an honest patriot; an instrument of fraud in many a designing and unprincipled man; but a vital principle in the arduous contest. There was no man daring enough to traffic upon an avowal of a disparity between the precious metals and paper money; although commodities imported from beyond sea, were from their increasing scarcity, somewhat advanced beyond the regular prices of tranquil times, and under the cloak of a fair augmentation, mercantile sagacity had spread a secret distrust of paper credit. Dexterities, however, of this sort, are not confined to revolutionary times.

Not a vestige of the emblem of royalty was tolerated when the public voice could be brought to act upon it. The wall of the house of burgesses, which was now transferred to the convention, was decorated with several of them. The chair, in which the speaker sat, now filled by the president of the convention, had a frontispiece commemorative of the relation between the mother country and colony. These had been criticised, before any formal act of reprobation was taken, and all of them were at different times effaced. Nay so irrational was the fury of some, that the noble statue, which public affection had erected to the memory of Lord Botetourt, who by his patronage and example had fostered religion and learning in Virginia, was with difficulty saved from a midnight attack. To her honor be it known, that all her authorities contradicted on this occasion, the trite calumny of ingratitude in republics.

Everything, which had been done in the convention of May, was hailed as masterpieces of political wisdom, and acted upon with a cheerfulness and submission, which naturally resulted from this first demonstration of popular self-government. The young boasted, that they were treading upon the republican ground of Greece and Rome, and contracted a sovereign contempt for British institutions. With them to recede from those institutions with abomination was the perfection of political philosophy. Not a murmur was heard against the incompetency of the convention to frame the constitution according to its full extent. Nay so captivating were its charms, that it was many years, before some of its defects, even upon the theory of democrary itself were allowed or detected.

Whatsoever may be the general opinion as to the inefficacy of test laws, in restraining a people from adhering to an enemy; Dunmore had by oaths of allegiance deterred many who were mild and inactive in their nature, from an union with their country. The convention employed a similar security for fidelity to the republic. To compel goodwill may in general be vain;---in revolution an oath of fidelity mixes religion and fear.

Although Virginia, from the first assumption of arms had submitted herself to the united counsels of America in congress, yet she now acted a lofty part in the exercise of sovereignty. In fact it was problematical, what species of government the jealousy of the separate states would concede to any general council or congress. To mention the surrender of one atom of sovereignty, as a contribution to a continental reservoir, was to awaken a serious alarm. Some state legislatures or other state authorities, even at this early period, were guilty of heresies with respect to the faith, which they had agreed to place in congress: and they were strong, because congress was the puppet of requisitions without energy. But Virginia unanimously adopted the primitive confederation.

Nov. 1776.

The convention of May assembled in November, as the regular legislature under the constitution.

It has been seen, that the friends of the established church, were apprehendsive of the force of their own principles, to which they has assented in the bill of rights, and how they were quieted by the assurance of Mr. Henry. But they were patriots who dreaded nothing so much as a schism among the people, and thought the American principle too pure to be adulterated by religious dissension. They therefore did in truth cast the establishment at the feet of its enemies; not extending their views to times, when Mr. Henry might not be able to confirm his word, by stemming the torrent of opposition; nor having sufficiently learned that if secular interests impel, when they rule by themselves, they overthrow all resistance when allied with religion. An indiscriminate taxation for a long series of years had been laid upon dissenters, who renounced all hopes of ascending to salvation through the gates of the church. The sums drawn from their pockets, though small, and not harshly inconvenient in the periods of payment, were certainly unjust and oppressive. The dissenters were no less ambitious, than the members of the church, and were eclipsed by them. Henry was in the executive chair, and therefore was disqualified to vindicate his former assurances to the church; though probably he might have acquiesced in the insidious form, which a projected law was assuming. It did not profess to abolish the establishment; but it sapped it, by suspending the stipends of the clergy. The first fracture in a chain, forged by an unjust principle, cannot easily be closed. In support of this law, the severest persecutions in England were ransacked for colours, in which to paint the burthens and scourges of freedom in religion; and antiquated laws in England, against the exercise of which the people would, even there have recoiled, were summoned up, as so many demons hovering over every scrupulous conscience not bending to the church. The votaries of that church were entrapped by an expectation, that the new law would be a permanent anchor to its existence, although the parochial salaries might never be revived. In this they were sacrificed to the poverty of their own intellect, in not discerning the nature and condition of their own sect. It had almost always been on the side of the monarchy:---while the hearts of the dissenters might truly be said to be in covenant with those who were clamorous against the threats of civil oppression. The lower country was the principal residence of the protectors of the establishment, and it was apparent, that these must soon be outnumbered in the legislature, where petitions were readily granted for the division of the upper counties, and the consequent multiplication of the representation of dissenters. The advocates for the church were apparently unconscious of its imbicility. It was enervated by mental inactivity, and it was palpable that a blow like this must stun it into a state of lingering, from which it could never wholly recover.

At this session of the old usage of preambles indicating the principal objects of laws, had not yet been discontinued. They had always been committed to the pew of the skilful men, who comprehended their entire subject, and believed, that there might be as much merit in deliberation and care, as in an affectation of expedition and brevity. This remark arises from the striking contrast which the two laws now to be treated of exhibit, with such as are ushered into the public code, without the decency of expounding to the people the motives of their enaction. It is true, that the enacting words ought to be so explicit, as to render it unnecessary to resort to a key from an introduction, which may be injurious if it does not cover with accuracy the whole of the matter enacted; but we have experienced in many English statutes, and in the best models of Virginia statutes, that preambles well drawn, are auxiliary to sound construction; the old frivolous contest, whether a preamble be a part of the law to which it is affixed, being now settled upon rational and convenient principles.

The first of those acts directs a revision of the laws. The report of that work will be found in the proceedings of the Legislature of the years 1785 & 1786. As the necessity of such a revision must be admitted by those, who consider, that the subordinate wheels of government ought to be in unison with the great machine, so will homage be paid to the comprehensive scheme delineated in that law, drawn by Mr. Jefferson

The other law abolished entails and converted tenants in taille into tenants in fee simple. At first the doctrine of entails in Virginia, depended upon the English statute, de donis conditiona bus. But afterwards, she especially prohibited the doctrine of entails, except by act of assembly, or the inquisition of a jury deciding the value of the property to be docked to be less than #200 sterling. The practice under the former mode was often nothing but mockery, for although an equivalent was supposed to be settled on the issue in tail, it instructs us, that legislative bodies have no diligence, and sometimes too much indifference in their inquiries, which relate to the distribution of private property. It has several times happened that an heir in tail has been obliged to accept as a substitute for the ample benevolence of an ancestor, some capul mortuum in soil, which was an incumbrance, attested however, in point of form to the assembly, as being of equivalent worth. Thus was plucked up by the roots one of the firmest props of aristocracy, and was testified a sincere attachment to the republicant system, zeal for the suppression of false credit between man and man, and a discouragement to filial disobedience.

Since the days of Bacon in 1676, a case of that species of treason, which may insnare the unwary and sacrifice the innocent, had probably not occurred in Virginia. But the slaughter, which the loose description of that crime, had one committed in England, admonished the assembly to adopt the definition upon which that country now rested much of the personal safety of its people. It was an offence sounding too horrible in the ears of government not to be punished with death. But although death was made the penalty here, the dower and distributive shares of widows were sheltered from forfeiture, and an attainder no longer worked a corruption of blood. The laws disabled the executive from granting full mercy, but referred the question of pardon to the succeeding assembly, until the meeting of which, execution might be respited. The line is not clearly marked, between this law, and the one for the punishment of certain offences: maliciously and advisedly to endeavor to excite the people to resist the government or to persuade them to return to a dependence on the crown of Great Britain, or to excite and raise tumults and disorders in the state, may at some time or other be found to be too little distinct from the law of treason.

It will be recollected, that what I have called the continental history of the United States, as connected with that of Virginia, will be found in an appendix, prepared with a view to be incorporated by the reader with this history.

To the latter the following additions may with propriety be made in the following year.

1. The Virginia assembly unanimously approved the articles of confederation, thus testifying by immense sacrifices how highly they valued union among the states.

2. The corroding tooth of depreciation had so deeply eaten into the credit of paper money; and the variety and magnitude of public expense, had poured from the press such torrents of this medium, that the assembly could no longer abstain from the delicate subject of taxation. Not only were the emissions of Virginia to be redeemed, but her quota also of the continental paper. The data for a system of finance, were few and badly arranged. To the amount wanted, taxes could not be strained, as had formerly been the case. In their journey into the treasury, a part of their product in the value collected, was by depreciation exposed to be lopped off; and political arithmetic was a mystery. But fortunately disproportion excited no murmur, while ease to the payer grew with the quantity of paper emitted. Taxation was begun.

3. It must be the wish of every friend to our national character, that when from a state of public inflamation, the rulers may rely with certainty upon a full sympathy from the people, and more especially when the national will under no controul from above, meets with no obstacle to divert it from the strict path of integrity, all public acts should stand upon the base of national honor. Remarks like these would not have been made, had the law of sequestration in this year, never been pushed farther than itself, and for the present will be dropped here, after a mere reference to that law, and vindicating it as far as it goes, even against the suggestions of impropriety upon the soundest principles of national law and right. For although many British subjects had lived in Virginia upon the faith of ancient harmony and membership in the same empire, had brought fortunes and credit hither, and here had centered all their hopes of happiness, and gathered capitals, expected to be used for life, yet the government was rent asunder by misrule, and the adherents to either party must share in the fate of that which they elected, as subjects, under the general law of nations. The review of this topic, may present in 1779, another aspect. Note the sequetration law.

Under the Regal administration, there had been a court of superior jurisdiction called the general court, and composed of twelve judges, members of the privy council, besides the governor. Among them generally, sat a commissary of the bishop of London, within whose diocese Virginia lay. Their jurisdiction was universal in subject and place, their decisions incapable of appeal, under the sum of 500lbs sterling. Professional men now were substituted in the larger judicial arrangements.

The discomfiture at the battle of Brandywine instead of producing despair awakened vigour.

Introduction * Part 2 * Part 3 * Part 4 * Part 5