The Glorious Cause: The American Revolution, 1763-1789 (133 page)

That the Constitution included no provision for popular ratification constituted further evidence of its defectiveness in Jefferson's eyes. The Convention itself was an ordinary legislature and hardly competent to lay out fundamental law. Yet when it completed its work, the work was considered a constitution.

Jefferson aimed not simply to reorder a government but also to change the society supporting it. Thus in the constitutions he drafted he recommended that fifty acres of land be allocated to all males who owned none, that the trade in slaves be prohibited, that the death penalty be abolished except in cases of murder, and that "all persons shall have full and free liberty of religious opinion: nor shall any be compelled to frequent or maintain any religious institution." None of these ideas made their way into the Virginia constitution.

Frustrated by the Convention's caution, Jefferson turned to the new government itself. Although the Convention had wanted him to remain in Congress, in September 1776 he resigned and the next month, after the freeholders of Albemarle County elected him, took his place in the House of Delegates.

There in October 1776 Jefferson introduced two important bills: one, quickly passed, abolished entails. The rule of entail confined property to a particular lineage which could not be altered by the owner except by the permission of the legislature in a special act. A related practice, primogeniture, required that property of an owner who died without a will must pass to the eldest son. Jefferson regarded both of these institutions as aspects of a feudal inheritance that had no place in a republican

society. Each provided a basis for aristocratic privilege and threatened liberty.
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Although Jefferson in October did not make an attempt to rid Virginia of primogeniture, the second bill he offered would open the way for an attack on it -- and virtually every other vestige of feudal and monarchical practice still haunting Virginia. This bill, which passed into law as rapidly as his proposal to discard entails, required the House of Delegates to appoint a committee to revise and codify the laws of Virginia. Whether the House conceived of this revision as somehow "revolutionary," that is, as an attempt to change fundamentally the statutory basis of Virginia law, is not clear. The committee the House appointed held different opinions about what it should do, but it resolved them and set to work.

The committee of five able men soon shook down to three, Edmund Pendleton, Speaker of the House and a distinguished lawyer, George Wythe, not as well known but a fine scholar and lawyer, and Thomas Jefferson, unusually brilliant and just coming into the fullness of his powers. Over the course of a long friendship Pendleton and Jefferson agreed on much and disagreed on much. At first they disagreed about what the committee of revisers should do. The usually "conservative" Pendleton, ordinarily disposed in favor of ancient things as Jefferson observed, proposed that they abandon the existing system of laws and devise an entirely new one. Jefferson wanted only to bring the laws of Virginia into conformity with the needs of the present, and apparently without great strain persuaded the committee of his wisdom. What Pendleton wanted to do seemed almost impossible, given the research, drafting, and persuasion required to pass even one statute.
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In June 1779 the committee finished its work, 126 bills covering a variety of subjects from the institutions by which the war might be directed to such matters as education, crimes and punishments, the church, plus many others. A few were enacted almost immediately, for example, "A Bill Establishing a Board of War," but most of those which eventually passed did so after the war when James Madison pushed them through the Assembly while Jefferson was in France. The Assembly never acted on the revised code as a whole but took up the bills piecemeal. Thirty-five passed in the session of October 1785, and twenty-three more in the autumn session of 1786.
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The bill on slavery was not the one Jefferson hoped to see through the Assembly, a bill which would have provided for gradual emancipation. The committee of revisers thought the prospects of such a bill were so bleak as to make its introduction useless. But they did prepare an amendment by which slaves born after the passage of the act would be freed on reaching adulthood. After training in a calling at the public expense, slaves were to be sent out of the commonwealth to be colonized at a distance remote from white society. Jefferson recommended colonization because he believed that blacks and whites could not live together peacefully. Their complex and terrible history made racial harmony unthinkable: "Deep rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real distinctions which nature has made; and many other circumstances, will divide us into parties, and produce convulsions which will probably never end but in the extermination of the one or the other race."
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This amendment was never introduced. Neither Jefferson nor Madison, nor the others who shared their conviction that slavery somehow must be ended, detected a spirit favorable to it in Virginia. What was approved re-enacted the prohibition against the slave trade, which had passed in 1778, and continued the customary restrictions on slaves. They could not leave their masters' plantations without permission, for example; nor could they testify in court cases involving whites. Their gatherings and their speech were also closely regulated.
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The revisers offered a bolder measure in the "Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital." Jefferson drafted this bill, a work of scholarship as well as of law, its substance on crimes and punishments supported by citations from the modern authority, Beccaria, the classics, Anglo-Saxon laws, and the common law. The bill reduced the number of offenses calling for capital punishment to two, murder and treason, and it limited severely the number of offenses to be punished by mutilation or maiming. But it retained the principle of retaliation for certain crimes -- "Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort. . . ." For men convicted of rape, polygamy, and sodomy, Jefferson prescribed castration;

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for a woman, "cutting thro' the cartilage of her nose a hole of one half inch diameter at the least." 16

After the bill failed to pass in 1785, Madison removed retaliation for mayhem before resubmitting it in October 1786, although the opposition may not have objected to this punishment. The opposition did, however, object to confining capital punishment to the crimes of murder and treason. The bill failed by a single vote. Madison reported its loss to Jefferson with a bitter comment -- "The rage against Horse stealers had a great influence on the fate of the bill. Our old bloody code is by this event fully restored. . . ." 17

"A Bill for the More General Diffusion of Knowledge" was equally dear to Jefferson. In it he proposed the establishment of several levels of schools at public expense in order to provide at least three years of education for all children -- girls as well as boys. These three years, in "hundred" schools, were to teach reading, writing, and arithmetic and the histories of Greece, Rome, England, and America. The state would also establish grammar schools, twenty in all, where Latin, Greek, English, geography, "and the higher part of numerical arithmetick" would be taught. Most of the students in these schools would attend at their parents' expense, but a small number of able children of the poor would be entered with all costs to be borne by the public. And the most promising senior from among the poor children would be sent, again at public expense, to William and Mary College for three years. 18

Although "all hands," according to Madison, conceded the necessity of some systematic provision for public education, the bill did not survive the scrutiny of the Assembly in 1786. The objections voiced by the delegates came down to financial cost and to doubt that the administration of this hierarchy of schools could be made to work. Some delegates apparently pointed to sparse settlements in several parts of the state, and westerners complained that the districts were laid out unequally. Madison dismissed this last protest as specious and seemed skeptical about the seriousness of the other criticisms. 19

There may have been another reason for the bill's failure. It may have seemed to promise more social equality than most Virginia planters wanted. The bill did not propose to level society; with its assumption that the best should govern, it had elitist implications, as Julian Boyd,

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16 Ibid.,492-507 (498, 497 for quotations) .

17 Ibid., XI, 152.

18 Ibid., II, 526-35 (531 for quotation) .

19 Ibid., XI, 152.

the editor of Jefferson
Papers
, has pointed out. But while it proposed that men of "genius and virtue" should be educated so that they might be enabled "to guard the sacred deposit of rights and liberties of their fellow citizens," it provided that they should be "called to that charge without regard to wealth, birth or other accidental condition or circumstance." Jefferson believed that men of ability might be found in any rank in society. They must be trained to their mission -- at the public expense if necessary. If they were not, the unworthy -- "the weak or wicked" -- might dominate government.
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That only the talented should have power was elitism; that the talented might be discovered anywhere was not. Jefferson's assumptions suggested that he believed that elitism and egalitarianism might be reconciled, and the means lay in education that drew on public as well as private resources.

Most of the gentry probably did not consider such a reconciliation desirable. The gentry had long been willing to look deep within itself for fresh recruits for government. All it required of candidates was that they be gentlemen and that they have talent. Now Jefferson asked the gentry to settle for talent alone on the assumption that it resided in the poor as well as in the rich. That supposition went down hard in men accustomed to assuming that quality was to be found only in their own kind.

Yet these same men gave Jefferson his greatest triumph in Virginia by approving a Bill for Establishing Religious Freedom. Their action did not come easily or quickly. When independence was declared everyone in Virginia, whatever his religion, paid taxes in support of the established church, the Episcopal Church, as the Church of England was soon called. Dissenters, especially Presbyterians and Baptists, now demanded that they at least be freed of this requirement. Although reluctant, the legislature granted relief for a year and extended it annually until 1779 when it was made permanent. At the same time the legislature suspended the requirement that members of the established church pay parish rates, but it did not abolish these rates. The church thus remained established, and the old statutes and the common law which permitted the state to punish heretical opinions continued in effect.
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War made conciliating the dissenters desirable, of course, and the defenders of the establishment therefore held their passions in check until peace was concluded.
Restraint never came easily to Patrick Henry,