The Virginia Constitution
The three drafts of Jefferson’s proposed bill outlining the “fundamental constitutions of Virginia,” here brought together for the first time, are so important in the light they cast upon Jefferson’s early ideas of government and upon the drafting of the Declaration of Independence that they require special comment and a particular form of presentation. Each of the three drafts printed below differs from the others. Only a meticulous collation of the numerous deletions, additions, variations, interlineations, and substitutions will establish the basis for a full understanding of the nature of the documents and of Jefferson’s constitutional thinking at this period. Each of the drafts is accompanied by detailed notes, descriptive and textual, but a general commentary on the chronology, relationships, and nature of these documents and their background is required.
This necessity is reinforced by the apparent fact that Jefferson regarded the drafting of fundamental plans or constitutions as “the whole object” at this period. All of his other major state papers up to this point—the Summary View, the Declaration of the Causes and Necessity for Taking Up Arms, even the Declaration of Independence—were topical or forensic in nature. Though each of these contained statements of his political theories, the drafting of a fundamental law was Jefferson’s first effort to make a concrete application of these theories and ideals.
On 10 May 1776, four days before Jefferson arrived in Philadelphia, Congress adopted John Adams’ resolution recommending that the colonies assume all the powers of government. On 15 May the Virginia Convention adopted its famous resolution calling for independence and appointed a committee to draft a plan of government. Jefferson, who had already given much thought to this urgent problem, wrote on 16 May to Thomas Nelson, delicately suggesting that the delegates in Congress be recalled to Virginia to assist in the work of framing a new government, which he described as “the whole object of the present controversy; for should a bad government be instituted for us in future it had been as well to have accepted at first the bad one offered to us from beyond the water without the risk and expence of contest.” It is difficult to overestimate the importance of this statement about “the whole object” and its relation to Jefferson’s drafting of the proposed constitution. The feeling and purpose expressed here must be the basis for an understanding of Jefferson’s legal reforms in Virginia by which he sought to alter the aristocratic structure of society; of his misunderstood administration as governor; of his disappointment over the frame of government adopted by the Convention; of his efforts to reform the constitution of 1776 (see Notes on the State of Virginia, Query xiii; his “Fundamental Constitution” of 1783, and “Notes for a Constitution” in 1794). Jefferson, quite properly, always regarded the Constitution of 1776 as merely an act of legislature “subject to be changed by subsequent legislatures, possessing equal powers with themselves” and as an act which should be superseded and “rendered permanent by a power superior to that of the ordinary legislature”; that is, by the sovereign people.
When two of these three drafts were discovered about 1890, an effort was made to show that the constitutional ideas advanced in them were at variance with Jefferson’s later views, exhibiting in general a conservative position (W. C. Ford, “Jefferson’s Constitution for Virginia,” Nation, li , 107; Ford, n, 7–9). This interpretation has been subsequently but only partially refuted (D. R. Anderson, “Jefferson and the Va. Const.,” Amer. Hist. Rev., xxi [1915–1916], 750–4; Malone, Jefferson, I, 235–40). The documents here drawn up contain, indeed, most if not all of the leading principles to which Jefferson’s entire career was dedicated: the people as the source of authority; the protection of “public liberty” and of individual rights against authoritarian control; the widening of suffrage and an equalization of the distribution of representation in the legislative branch; the use of unappropriated lands for the establishment of a society of independent farmers who would hold their lands “in full and absolute dominion of no superior whatever”; the just and equitable treatment of the Indians; the use of the western lands so as to remove friction with neighboring states and promote the cause of nationality; the encouragement of immigration and the lowering of barriers to naturalization; the elevation of the civil over the military authority; the abolition of privilege and prerogative; and so on. Indeed, Jefferson’s constitution foreshadowed much of his legislative reforms of 1776–1777: the provision for the regulation of descents went even further than his later bill for abolishing primogeniture—a provision much more radical in the First Draft than in the Second and Third Drafts. The adoption of his constitution would also have eliminated the need for his Bill for Religious Freedom and would have avoided years of discussion and debate on that subject. And the provisions against capital punishment and the denial of the pardoning power anticipated the views expressed in his later Bill for Proportioning Crimes and Punishments.
These fundamental topics form the subject of a notable exchange of letters between Jefferson and Edmund Pendleton, president of the Virginia Convention, between 24 May and 26 Aug. (the last is particularly notable). Therein Jefferson explained clearly what he had in mind in drafting various provisions in his proposed constitution—why he had long favored an allodial system of land tenure, why he proposed an extension of the suffrage, what he intended by his treatment of crimes and punishments, &c. Pendleton, an able and intelligent product of the eighteenth century Enlightenment, could not, however, go all the way with Jefferson. This correspondence is only a fragment—what must have been one of its best examples, Jefferson’s letter of 29 July, is missing-but enough remains to show with remarkable clarity how two intelligent, responsible statesmen of Virginia discussed dispassionately the principal issues of their day. Each presented his arguments cogently, each respected the other’s integrity and point of view. But their differences serve only to emphasize the strength and extent of Jefferson’s early convictions and to explain in large measure some of the events of the ensuing months. Certainly these differences over land tenure help to explain the remarkable vigor of Jefferson’s legislative reforms in the autumn of 1776, as they do Pendleton’s opposition at that time to Jefferson’s attack upon the holding of lands in fee-tail. Bitterly disappointed over the Convention’s failure to remold Virginia society in accord with republican principles, Jefferson then set about, as he declared later, to reframe the whole body of law, to achieve by legislation what he had not been able to accomplish in the framing of a constitution.
The text of the Constitution adopted by the Convention is included here in order to provide a basis of comparison with these leading Jeffersonian principles: on the essential questions of extension of the suffrage and equalization of the basis of representation the contrast is greatest. Here the Convention’s plan of government tended to support the status quo. But there is another reason for including this Constitution: it is, in part, a Jefferson document and, as the notes below indicate, more of Jefferson’s constitution was incorporated in it than he remembered or most historians have discerned. Whereas Jefferson’s catalogue of the misdeeds of “George Guelph” prefaced a constitution that sought to establish a polity where such misdeeds and the authority under which they were committed would be forever abolished, making preamble and text a complementary whole, this catalogue of the results of privilege and prerogative became rather incongruous in a constitution that sought to substitute one kind of privilege and prerogative for another. Yet the Convention did incorporate several other provisions from Jefferson’s draft.
Quite aside from these fundamental points, it is necessary to present all of Jefferson’s drafts because the first of the three must now assume a stature greater than has hitherto been accorded it. As a result of a minute comparison of the three texts, the First Draft must now be regarded as a single document adapted to two purposes. Its first page, bearing the list of charges against the king, served as the rough draft for that portion of the Third Draft of the Virginia Constitution. Having served this purpose, it was then altered, added to, and its paragraphs numbered in a different order so as to adapt it to a similar purpose in the Declaration of Independence. Even after Jefferson had drawn up the Declaration of Independence and had permitted John Adams to make a copy of it, at least one change was made in both the Declaration and in this first page of the First Draft. To be sure, the similarities between this part of the First Draft and the Declaration had been noted even during Jefferson’s lifetime: in 1825 he declared that “both having the same object, of justifying our separation from Great Britain, they used necessarily the same materials of justification: hence their similitude” (TJ to Augustus B. Woodward, 3 Apr. 1825). In the discussions of the drafting of the Declaration of Independence that occurred a few years before his death, Jefferson declared that he had “turned to neither book nor pamphlet while writing” the Declaration and that it was not copied “from any particular and previous writing” (TJ to Madison, 30 Aug. 1823; to Henry Lee, 8 May 1825). Nevertheless, the evidence is conclusive that Jefferson did use the first page of the First Draft of his Virginia Constitution in drawing up the corresponding part of the Declaration. We are now justified in elevating this remarkable document to the status of a part of the composition draft of the Declaration of Independence.
Moreover, there can scarcely be any doubt that the Virginia Resolutions of 15 May provided at least some of the additional charges against the king inserted on page 1 of the First Draft when Jefferson revised it to meet the purposes of the Declaration of Independence. “I expected,” Edmund Pendleton wrote to Jefferson on 22 July, “you had in the Preamble to our form of Government, exhausted the Subject of complaint against Geo. 3d. and was at a loss to discover what the Congress would do for one to their Declaration of Independance without copying, but find you have acquitted yourselves very well on that score.” The answer is that Jefferson not only copied from the First Draft of his constitution but also, in part, utilized the Resolutions adopted by the Virginia Convention of 15 May (see notes under Declaration of Independence).
It is not enough, however, merely to present the three Jefferson drafts and the text of the Constitution as finally adopted by the Convention. The extent of Jefferson’s contribution to that document cannot be fully gauged without an examination of some of the other texts that formed the antecedents of the Virginia Constitution. From the autumn of 1775 down through the final days of the Convention, various leaders in and out of Virginia contributed to the momentous discussion: John Adams, Richard Henry Lee, Meriwether Smith, George Mason, Carter Braxton, Patrick Henry, and others besides Jefferson are among those who wrote or are reputed to have written plans of government that may have been considered by the Convention of 1776. As Edmund Randolph, a member of the Convention, wrote in his MS History of Virginia: “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” (Randolph, “Essay,” VMHB description begins Virginia Magazine of History and Biography, 1893- description ends , xliv , 44). This welter of proposed drafts of constitutions, together with remembered statements of political leaders of that day and investigations of historians, makes the question of authorship of the Virginia Constitution a complex and difficult one. K. M. Rowland (Mason, I, 250ff.) makes the most extensive claim in support of Randolph’s statement that the plan proposed by Mason “swallowed up all the rest.” But C. R. Lingley (Transition in Virginia, 158–71) presents the best summary of the question of authorship and concludes: “The brevity of the records in regard to the plan has left the authorship of the document in obscurity and so has given rise to a controversy which in most respects is not useful. The truth probably is that Mason’s draft was more influential than the others.”
The fact is, however, that those documents still in existence, admittedly few in number, have never been precisely analyzed textually and chronologically. An analysis of them, involving a presentation of all of the texts and an examination of their various stages of emendation and amendment, cannot be undertaken here. Nevertheless, in order to fix as exactly as possible the extent of Jefferson’s contribution, it is necessary to describe briefly and to attempt to identify chronologically the salient plans other than his that are known to have been used or were available to the Convention. Those that antedated the final Constitution will be referred to in the notes by the designation here given each:
The Adams plan. John Adams, who had also advised John Penn of North Carolina and Jonathan Dickinson Sergeant of New Jersey about the framing of constitutions for those states, really drew up two plans for Virginia, the second an amplification of the first.
The first was set down in brief form in a letter to Richard Henry Lee, 15 Nov. 1775 (Adams, Works, iv, 185–7).
The second resulted from a conversation between Wythe and Adams in Philadelphia in Jan. 1776. Wythe requested Adams to reduce his ideas to writing, and Adams complied the following day. Wythe communicated the result to his colleague Richard Henry Lee, who asked for and received Adams’ permission to publish (same, 191). The printed version was entitled Thoughts on Government: Applicable to the Present State of the American Colonies. In a Letter from a Gentleman to his Friend, Philadelphia: Dunlap, 1776 (same, 189–202). At one time, according to C. F. Adams (same, 191), this pamphlet was attributed to Jefferson, but the authorship by Adams is indisputable. It is an elaboration of the plan outlined for Richard Henry Lee in the preceding November. Lee sent copies of Thoughts on Government to Patrick Henry, Charles Lee, Robert Carter Nicholas, and perhaps to others (R. H. Lee, Letters, I, 179, 183, 184) and said that Adams’ “plan, with some variation, would in fact be nearly the form we have been used to.”
The Gazette plan. On 10 May, 1776, shortly after the Convention had assembled, a brief outline of a plan of government for the colony was published in Purdie’s Virginia Gazette. This may have been written by Richard Henry Lee, who sent a copy of Adams’ Thoughts on Government to Patrick Henry on 20 Apr. 1776, and added this comment: “The small scheme printed in hand bill I had written before I saw this work of Mr. Adams, and he agrees that the Council of State had better be a distinct body from the Upper House” (Henry, Henry, I, 381). The Gazette Plan makes the council separate, but in most other respects it follows the Adams Plan closely; indeed, it is probable that Lee’s “small scheme” was merely a rephrasing of the plan that Adams had given to him on 15 Nov. 1775, for both are alike in substance and in distinctive phraseology. It was the Adams letter of 15 Nov. that first employed, for each of the provisions, the distinctive beginning: “Let the House choose…,” “Let the governor …,” &c., a form employed in the Gazette Plan and in both the Braxton Plan and the Mason Plan discussed below. It is most likely, as William Wirt Henry suggests, that Richard Henry Lee modified the Adams Plan and that Patrick Henry was responsible for placing this in the Virginia Gazette of 10 May (Henry, Henry, I, 418–20), though there is evidence, noted below, that Mason used it and may indeed have been responsible for it. No copy of the handbill enclosed in Lee’s letter of 20 Apr. has been found. It is important to note that Lee left Philadelphia on 13 June with Wythe in order to take part in the framing of the Constitution. “The desire of being here at the formation of our new Government brought me from Philadelphia. … I have been in this City a week [he presumably arrived, as did Wythe, June 23] where I had the pleasure to see our new plan of Government go on well. This day will put a finishing hand to it. Tis very much of the democratic kind” (R. H. Lee, Letters, I, 203, 207). The last statement may throw some light on Lee’s preference for the Adams Plan to that of Jefferson, since the Adams Plan was essentially what the colony had been used to and Jefferson’s was a radical departure. It suggests also that Lee may have been responsible for the inclusion of some features of the Adams Plan (see below) among amendments offered after the Committee Plan was submitted to the Convention. At any rate, though not a member of the Convention, Lee unquestionably had influence in and out of doors: “A fortnights stay here,” he wrote Samuel Adams on 6 July, “has enabled me to assist my Countrymen in finishing our form of Government” (R. H. Lee, Letters, I, 207).
The Braxton plan. In the spring of 1776 there appeared in Philadelphia, written in answer to Adams’ Thoughts on Government, a pamphlet entitled Address to the Convention of the Colony and Ancient Dominion of Virginia, on the Subject of Government in General, and Recommending a Particular Form to Their Consideration. By a Native of the Colony (Philadelphia: Dunlap, 1776; Force, Archives, 4th ser., vi, 748–54). This has been generally attributed to Carter Braxton. Its point of view was so aristocratic that Patrick Henry declared it “a silly thing … an affront and disgrace to this country” (Adams, Works, iv, 201–2). Braxton’s position is opposed to the republicanism of the Adams Plan and is reflected by the query as to whether, “if the [British] Constitution was brought back to its original state, and its present imperfections remedied, it would not afford more happiness than any other.” The Address to the Convention was printed in Dixon & Hunter’s Virginia Gazette of 8 and 15 June. Aside from the fact that it arrived late, its extreme conservatism was enough to prevent its having any influence on the Convention. The Braxton Plan arrived in Williamsburg around 20 May (Adams, Works, iv, 201–2; Henry, Henry, I, 411, 413). John Adams reported to Patrick Henry that it was “whispered to have been the joint production of one native of Virginia, and two natives of New York” and was “too absurd to be considered twice” (Henry, Henry, I, 415). Richard Henry Lee, agreeing with Patrick Henry’s appraisal, said: “This Contemptible little Tract, betrays the little Knot or Junto from whence it proceeded” (R. H. Lee, Letters, I, 190).
The Mason plan (Document IV below). William Fleming’s letter of 22 June to Jefferson sets at rest the question of the extent of George Mason’s authorship of the Constitution: “The inclosed printed plan was drawn by Colo. G. Mason and by him laid before the committee.” Fleming’s letter also seems to establish the fact that this plan was laid before the committee about 8–10 June. Mason, delayed by illness, arrived in Williamsburg on 18 May and was immediately appointed to the committee charged with the duty of drawing up a constitution. It is probable, therefore, that his MS draft (not now known to be extant) was drawn up late in May or early in June. As the notes indicate, he almost certainly made use of the Adams and Gazette Plans, but the provisions for a senatorial electoral college and for suffrage qualifications bear strong evidence of being original and the product of Mason’s distinguished mind.
The Mason plan as revised by the committee (Document v below). This Plan is the most important for the present purpose. The letter of William Fleming to Jefferson, 22 June, enclosed the printed Mason Plan as revised by the Committee up to 22 June, representing the approximate final form of the Constitution as it stood in the committee just prior to the arrival of Jefferson’s Draft. But the Mason Plan had undergone much change. Fleming’s copy of it bears numerous marginal comments indicating what changes had been made in the progress of the Plan through the committee. This Plan included fifteen numbered paragraphs; opposite paragraphs 1, 2, and 6 Fleming wrote the word “Agreed,” all other paragraphs having been altered or wholly deleted. A comparison of the Mason Plan as thus amended with the Constitution as adopted and with Jefferson’s Third Draft provides the basis for determining the extent of Jefferson’s contribution (see notes on Document vii, below).
The draft reported by the committee (Document vi below).
The final and complete Report of the Committee would be even more important for textual comparisons than the incomplete list of amendments and alterations of the Mason Plan as given by Fleming to Jefferson. Unfortunately, the full text of the Report of the Committee is not known to be in existence. But that there was such a complete Report, embracing some alterations made subsequent to those detailed by Fleming, is proved by the presence of a three-page MS in the Virginia State Archives bearing the caption “Amendments to the Plan of Government Continued.” These amendments, which were offered in Convention during 26–28 June, are unhappily incomplete, but enough are included to prove (1) that the Report of the Committee was not the printed Mason Plan with alterations written thereon, as in Fleming’s copy, but a new draft, now missing; (2) that it may have contained the preamble but probably no other parts from Jefferson’s proposed constitution; and (3) that, before reporting to the Convention, the Committee made alterations in the Mason Plan in addition to those reported by Fleming. The partial MS is printed in the following series (Document vi) in order to show, as far as possible, the progress of the drafting of the Constitution between 22 and 28 June. The notes to this MS indicate some of the reasons for the conclusions here stated.
But by far the most important contribution made by this list of amendments is that revealing the manner in which Jefferson’s Draft was employed by the Convention. Though this process cannot be followed in full, since the amendments are incomplete, it is possible now to state that the Convention at least considered the inclusion of that part of Jefferson’s constitution limiting the powers of the governor. One of the amendments embraces several sentences, copied word for word from Jefferson’s Draft; but his words were struck from the amendment before it was adopted. Another noteworthy contribution of this list of amendments is that revealing Wythe’s presence in the Convention and his offering an amendment drawn from Jefferson’s Draft.
The Virginia Literary Museum for 23 Sep. 1829 (I, 225–7) published what was described as “Original Draught of the Constitution of Virginia” with the statement that “the printed report of the constitution from which the subjoined draught is taken, is, perhaps, the only copy extant. The report is dated June 24, 1776.” This statement, taken in connection with the date given, would seem to indicate that the “Original Draught” was the printed Report of the Committee made on 24 June. An examination of the text given in the Virginia Literary Museum, however, reveals that the document printed is merely the original printing of the Mason Plan (there are two variations in section 6 and section 8 but these were obviously printer’s errors; the same text was printed in Richmond Enquirer for 6 Oct. 1829).
The constitution as adopted by the convention (Document VII below). This is obviously the MS copy of the Constitution that the Convention on 28 June ordered “to be fairly transcribed.” A few amendments and changes, some of them quite significant, were made in this text even after this complete fair copy of the Constitution was made; these are indicated in the notes to Document vii.
In view of the foregoing, it is obvious that no single person can be advanced as the “author” of the Virginia Constitution. That Adams’ Thoughts on Government had a direct influence on the Mason Plan and the Constitution can be demonstrated by a comparison of phraseology (e.g., Adams’ remarks on commissions, writs, and indictments, Works, IV, 199, are followed almost verbatim in the Mason Plan and in the Constitution). That Richard Henry Lee modified the Adams Plan is probable, as it is equally probable that Patrick Henry introduced one or the other or a modification thereof in the Virginia Gazette. Second, the Constitution, deriving from various plans and discussions of preceding months, was fought over, as Jefferson said, “inch by inch.” Many modifications were made and many persons had a hand in these modifications.
The contributions of Jefferson to the Virginia Constitution can be unmistakably identified by comparing his texts with the Committee revision, with the amendments offered in Convention, and with the final Constitution; certain parts are indisputably Jefferson’s in phraseology and substance. Of all the plans that are known, only Jefferson’s can be regarded as a complete, finished, detailed form of government: all others that are known were outlines, some merely describing and distributing the major powers of government. His was a carefully and thoroughly wrought document, exact in detail, harmonious in structure, consistent in purpose and instinct with the leading principles that guided his entire life. Different as his constitution was in its preciseness and in its magnificent vision from that under contemplation by the Convention, it received its greatest tribute when the Convention, worn out with its own struggles over constitution-making and many other problems, reopened an almost closed chapter and incorporated as much as it dared of Jefferson’s Draft. The remarkable thing under the circumstances is not that Jefferson’s advanced ideas were rejected but that, at the last moment, the Convention was willing even to consider his constitution. The fact that use was made of considerable part of it is a tribute to its excellence and to the influence of its author.
The notes to the Virginia Constitution (Document VII) identify those parts of the Constitution that are here, for the first time, identified as certainly or probably Jefferson’s. All the texts in this sequence are reproduced with literal fidelity. Square brackets in printed texts are, unless otherwise noted, in the MSS.