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.
Documents
Bill of Rights
Constitution
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.
1776.
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.
