Conceived in Liberty (232 page)

The dons, the bashaws, the grandees, the patricians, the sachems, the nabobs,... curse, but all in vain. The decree is gone forth, and it cannot be recalled, that a more equal liberty than has prevailed in other parts of the earth, must be established in America. That exuberance of pride which has produced an insolent domination in... a very few, opulent, monopolizing families, will be brought down nearer to the confines of reason and moderation....

Dominating the committee drafting the Virginia constitution was Henry’s right-hand man in leading the Virginia moderates, George Mason. Mason, who had drafted the Fairfax Resolves put through the Fairfax County meeting by Washington, had played an important role in leading the revolutionary forces in Virginia. The constitution, as submitted by the committee and adopted unanimously on June 29, signalled a victory for the moderates: An elected lower house would consist, inequitably, as in colonial days, of two members from each county; an upper house, or Senate, would also be elected annually by the people; a governor would be elected annually by joint ballot of both houses of the legislature, as would a privy council, or Council of State, to assist the governor. To check entrenchment of an executive in power, no more than three terms in succession were allowed a governor, and he could not act without the consent of the Privy Council. Superior judges were to be elected by both houses, but county judges and other officials were to be appointed by the governor and were to hold office on “good behavior,” i.e., virtually for life. Both the gubernatorial appointment and the life terms were holdovers from colonial rule.

The proportion of two members from each county was palpably weighted in favor of the planter oligarchy of the Tidewater counties, which had larger plantations and fewer eligible voters than the piedmont
and valley areas. Thus, tiny Warwick County in the Tidewater, with a few hundred voters, had a delegation in the lower house equal to large western counties containing a few thousand voters each. As time went on and emigration continued westward, this disproportion would grow still greater. Virginia’s restrictive qualifications for voting were retained intact, despite proposals by Mason and Jefferson to broaden the suffrage.
*

Due to a determined fight by the Henry forces, the power of the governor was set as subordinate to the legislature, only the House could originate legislation, and the Senate could not amend an appropriations bill. In selecting the governor, the moderates put up Patrick Henry, while the archconservatives selected the virtually outright Tory, Thomas Nelson. Henry was elected by a vote of sixty to forty-five; the Council of State chosen to aid him was dominated by the conservatives.

As a preamble to the constitution, the provincial convention inserted a list of bitter charges against the person of King George III, sent by Jefferson from his post in the Continental Congress. On the basis of these charges levelled squarely and boldly against the king, Virginia repeated its assertion of independence and declared its connection with the British Crown totally dissolved.

If the Virginia Left was middle-of-the-road on the structure of government, the same caution and moderation were not shown on another critical struggle waged in the provincial convention. In one of the monumental libertarian advances of political history, the Virginia Left decided
to enact a Declaration of Rights committing themselves, at least in theory, to protect and not to invade the natural rights of each individual. Thus was born the monumental concept of a bill of rights designed to prevent government from invading the rights of the individual. On this issue the Virginia Left proved to be radical indeed.

The convention had assigned to the committee with the job of drawing up a declaration of rights the man best suited to the task, George Mason, who threw himself into the work with a will, aided by Thomas Ludwell Lee. In an effort to prepare the climate for the declaration, numerous county petitions were circulated, vaguely calling for democratic and liberal measures.

Drafted almost completely by Mason, the Declaration of Rights was introduced by the committee and modified by the convention. Some of the changes strengthened the declaration, but the central struggle grew out of the determined attempt by the archconservatives led by Nicholas to weaken or block it altogether. Patrick Henry’s disquieting defection on forbidding ex post facto laws and bills of attainder cut these clauses from the declaration, but the major battle was waged over its magnificent first clause. Mason had there written “that all men are created equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and attaining happiness and safety.” Here, in a scintillating and compact form, was the essential statement of the radical libertarian theory of natural rights.

The conservatives, possessed of the clarity given to them by their vested interests, saw immediately the main danger of this clause. If
every person
has a natural right to be equally free and independent, what happens to the institution of slavery on which rested the power and pelf of the Virginia planter aristocracy? Undoubtedly, Mason knew what he was about, for as early as 1765 he had criticized the institution of slavery on moral and economic grounds. Nicholas and his “set of aristocrats” and “masters” (in the words of Thomas Ludwell Lee) fought the clause fiercely. To declare all men created free and independent would invite a slave revolt, they argued. The conservatives were able to force modification of the clause: “natural” was excised from “inherent... rights,” and “God and Nature” was excised from another important clause. “Namely” was substituted for “among which are” to restrict the scope of individual rights. But most important, the clause “when they enter into a state of society” was inserted between “of which” and “they cannot.” This made it possible for the conservatives to rest content with interpreting natural rights as belonging only to those men who had “entered into a state of
society.” Clearly, the slaves had never been given a chance to make this entrance.
*

Despite these modifications, the Virginia Declaration of Rights, unanimously adopted by the convention on June 12, 1776, is one of the great documents in American history. It set the pattern for all future state and national—and foreign—bills of rights, and stamped the libertarian doctrine of natural rights, at least in theory, upon the American Republic. The preamble of the declaration stated that the representatives of the people of Virginia assert a body of rights which “do pertain to them, and their posterity, as the basis and foundation of government.” Following the first clause, the declaration included democracy (“that all power is [originally, ’by God and Nature’] vested in, and consequently derived from, the people; that magistrates are their trustees, and servants, and at all times answerable to them”); the right of revolution (when government fails to secure or violates proper aims, “a majority of the people hath an indubitable, inalienable, and indefeasible right, to reform, alter, or abolish it....”); no right of special or hereditary privileges; separation of the judiciary from the other functions of government; rotation of office in the legislative and executive branches; free and frequent elections; no taxation without representation; the traditional rights of a defendant to know the nature of the charges against him, to confront his accusers, to have a speedy trial by jury which must be unanimous to convict him of a crime, not to be forced to give evidence against himself, and to be free of excessive bail and cruel or unusual punishments; the prohibition of general warrants (searches and seizures by government must be named in advance in special warrants and supported by advance evidence); freedom of the press (“one of the great bulwarks of liberty”); no standing armies (which are “in time of peace... dangerous to liberty”); a people’s militia as the proper form of defense; “strict subordination” of the military to the civil power; and freedom of religion (religion “can be directed only by reason and conviction, not by force and violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience....”). On this last point, the phrase “free exercise of religion” had been substituted for a far weaker stress on religious
toleration
at the suggestion of Mason’s young colleague on the drafting committee, James Madison.

Emboldened by the march of southern opinion and action as well as by its own deeds of the preceding months, the Continental Congress in mid-May took the penultimate steps toward a final state of independence.
On May 10, led by John Adams and Richard Henry Lee, it resolved to recommend to those legislatures of the “United Colonies” which had not done so to adopt suitable new governments of their own. No phrases hinting at eventual reconciliation with Great Britain appeared in this resolution, as in the advice to New Hampshire six months before, but it was still sufficiently bland to win the support of the conservatives in Congress.

The big battle was waged immediately afterward, over the preamble to the resolution. Drawn up by John Adams and backed by Richard Henry Lee, the preamble began with a list of grievances against Great Britain directed against the king as well as Parliament, and then concluded with this crucial and devastating passage:

It appears absolutely irreconcilable to reason and good conscience... now to take the oath... necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies....

Here the gauntlet was hurled at Great Britain; this preamble, attached to a call for new government, was nothing less than a de facto declaration of independence. Opposition to the preamble was led by James Duane of New York, Carter Braxton, and the brilliant young James Wilson. Wilson warned prophetically that passage of the preamble would put his province of Pennsylvania into an anarchic “state of nature” and dissolve its existing proprietary government.

Congress, however, overrode the objections of the conservatives and adopted the preamble on May 15. The vote has been reported as six or seven to four, and assumedly among the four colonies in the negative were Pennsylvania, New York, and Maryland. Adams was understandably jubilant, writing that Congress had passed “the most important resolution that ever was taken in America,” one that was “total absolute independence,” “independence itself.”

*
Quoted in Moses Coit Tyler,
Patrick Henry
(Ithaca, N.Y.: Cornell University Press, 1962), p. 187.

*
In their desire to demonstrate that (a) colonial Virginia was thoroughly democratic except for the impositions of Great Britain, and (b) that the American Revolution was in no sense an internal social revolution, Robert E. and B. Katherine Brown become mired in a grave inner contradiction. If, for example, representation was only undemocratic because of British coercion, then how is it that this imposition was cheerfully continued in the new constitution by the supposedly democratic Virginia leadership? One cannot pin the responsibility for aristocracy in colonial Virginia upon Great Britain, insist (with some justice) that there was no internal revolution in Virginia, and then conclude that Virginia was democratic before
and
after the revolution!

In his brilliant review of the Browns’ work, Stephen Saunders Webb writes that they “insist that the prevalence of appointive office in Virginia was owing to ’imperial’ control rather than to aristocratic dominance. They fail to consider that the appointive system was not significantly altered by the Revolution, which eliminated imperial control.” As for the absence of an internal revolution in Virginia, this is “a fact which they attribute to a general acceptance of democracy. It is at least as logical (and more consistent with the fact that almost every revolutionary leader in Virginia was an aristocrat) to conclude that this remarkable quietude was the result of a continuing aristocratic hegemony....” He justly adds that to take such quietude and lack of widespread public protest as a sign of democracy would mean that “Louis XIV’s France was not undemocratic either.” See Stephen Saunders Webb, “Review of the Browns’
Virginia: 1705–86
,”
Wisconsin Magazine of History
(Autumn 1964), pp. 63–64; Robert E. and B. Katherine Brown,
Virginia 1705–1786: Democracy or Aristocracy?
(East Lansing, Mich.: Michigan State University Press, 1964).

*
See Robert A. Rutland,
George Mason
(Williamsburg, Va.: Colonial Williamsburg, 1961), pp. 53ff.

Congress’ May resolutions spurred independence sentiment throughout the colonies, and John Adams soon exulted that “every post and every day rolls in upon us Independence like a torrent....” Virginia had struck for independence, and the Massachusetts House primed support in the grassroots by asking the towns their views on independence. Through May and June the Massachusetts towns, as might be expected, answered that they would support the measure “with their lives and fortunes.” Rhode Island, too, was stimulated to instruct its delegates to sign any necessary treaties with foreign states; it had opted for independence as early as May 4 when the legislature had renounced all allegiance to King George and assailed “his debasing and detestable tyranny.”

Adams’ jubilation was decidedly premature. America could not proclaim its independence without the middle colonies, and the middle colonies still stood obdurately outside, or opposed to, the independence movement. The powerful landed oligarchs of New York and the highly conservative Philadelphia financiers stood foursquare against independence. Their brilliant leaders—the Morrises, the Jays, the Livingstons, the Dickinsons, the Willings et al.—not only thoroughly dominated their provinces; they were shrewd enough not to turn outright Tory and thus lose any hope of ruling their respective populaces. Independence could not be assumed while these two great colonies remained adamant in opposition. The Pennsylvania Assembly had, in November, specifically directed its delegates to oppose any plan for independence; and the instructions of New York, Maryland, and Delaware had clearly emphasized American ties with Great Britain. Even as late as the May 1776 assembly
election, the conservatives carried Philadelphia. On May 15 when Virginia and the Continental Congress were taking such rapid strides towards independence, the Maryland Convention, in a burst of reaction, was resolving unanimously that “a reunion with Great Britain on constitutional principles” would best secure the rights, liberty, and happiness of the whole empire.