Notes for a Speech Favoring Revision of
the Virginia Constitution of 1776
Certainly by 1783 JM saw flaws in the 1776 Virginia Constitution that confirmed his early disappointment with it. As has been noted, he thought the Council of State, on which he served, was “a grave of useful talents,” and the jealousy displayed by the House of Delegates toward the other branches of government could scarcely have escaped his attention. This constitution, essentially the work of George Mason, gave lip service to Montesquieu’s doctrine of a separation of powers while really leaving the main powers of government in the hands of the speaker of the House of Delegates and its most influential members. Jefferson prepared a draft in 1776 which, unlike the constitution adopted by the convention, would have given the governor more extensive powers, clarified the duties and jurisdiction of the courts, liberalized the granting of public lands, ended primogeniture, and specified certain religious and civil rights which the state was bound to honor. Only Jefferson’s preamble was grafted into the final version of the Constitution of 1776. After his trying experience as governor (1779–1781), Jefferson complained that the fundamental law of Virginia contained “very capital defects.” JM agreed and was ready to launch a reform movement once the great issue of national survival had been settled.
By the fall of 1782 the subject was being privately discussed with the May session of the General Assembly in view. George Mason told close friends he understood “that the present Assembly intend to dissolve themselves, to make Way for a General Convention, to new-model the Constitution,” but questioned whether or not it was prudent to delay such action “until the present Ferment … has subsided, and Mens Minds have had time to cool” (Rutland, Papers of George Mason, II, 768–70). The reform movement was not well developed, however, and it became apparent that most delegates had no enthusiasm for constitutional reform. Perhaps, as Philip Mazzei said, they “feared that by jumping out of the frying pan they would fall into the fire” (Marraro, Memoirs, p. 285 n. 6).
If any one person kept the idea of constitutional revision alive, it was Jefferson. In the summer of 1783 he reported to JM that a revising convention had “been much the topic of conversation for some time,” and the day to act seemed at hand. Accordingly Jefferson sent JM his notions on a revision but cautioned him not to share them with fellow Virginians because of “prejudices frequently produced against propositions handed to the world without explanation or support” (Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , VII, 156–57). Probably Jefferson expected to broach the subject to the House of Delegates that spring, but the illness of his wife drew him away from the session and back to Monticello, with the result that he sent JM his propositions. It seems likely that Jefferson expected JM to take up the cudgel of constitutional reform and use the enclosures of 17 June (printed in Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N. J., 1950——). description ends , VI, 294–305) as the point of departure. At least the circumstances forced such a decision for Jefferson returned to the Congress that fall and thereafter remained only an observer of state politics. Jefferson’s severe critique of the 1776 Constitution called for a strengthened governorship, with the tenure extended to five years, and his powers extended so as better “to carry into execution the laws.”
Jefferson undoubtedly urged JM to stop by Gunston Hall early in the winter of 1783 en route from Philadelphia to Orange County. JM tested Mason on a proposed constitutional convention “for revising our form of government” and found Mason “sound and ripe and I think would not decline a participation in the work” (italicized words in code; Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , VII, 401). Mason’s political power could well limit the success of the reform yet Jefferson and JM apparently thought they could not move ahead without the elder statesman’s help, or at least a promise that he would not interfere (Jefferson to JM, 11 Dec. 1783, ibid., p. 406). During the next few months, the subject was gingerly offered to another great man in Virginia politics, the redoubtable Patrick Henry. As Jefferson and JM viewed matters, Henry would not risk his reputation by favoring any measure not certain of success. Before the session of the General Assembly of May 1784 began, JM decided constitutional revision depended upon Richard Henry Lee and Henry, since Mason had refused to leave Gunston Hall (JM to Jefferson, 15 May 1784). JM tried to learn Henry’s sentiments and was mildly encouraged by the great orator’s guarded remarks. “The general train of his thoughts seemed to suggest favorable expectations,” JM reported to Jefferson.
What then happened is clear from JM’s post mortem on the session. As Edmund Randolph had correctly predicted a year earlier, the delegates “constantly profess a sacred regard to the constitution” (Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , VI, 319). However, an Augusta County petition, with its casual reference to the state constitution, gave JM and his ally Richard Henry Lee an excuse to raise the whole question of revision. Carter Henry Harrison introduced a resolution which declared that the 1776 Constitution did “not rest upon an authentic basis, and was no more than a temporary organization of government for preventing anarchy.” A companion resolution called for the convening of a general convention, “with powers to form a constitution of government to which all laws present and future should be subordinate” (JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , May 1784, p. 55). The line of reasoning used by JM in a speech which he made either on 14 June or a week later bears the heavy stamp of Jefferson’s earlier writings. Comparing this and the resolutions, it is likely JM composed the reform propositions.
After 14 June, however, the revisionists’ battle was all uphill. Richard Henry Lee, counted on as a stalwart friend of revision, became ill and left the session on 20 June. The next day, the Committee of the Whole upset the revisionists’ applecart by rejecting a resolution for a constitutional convention, 42 ayes to 57 noes. The majority then went further and declared “such a measure not being within the province of the House of Delegates to assume; but on the contrary, it is the express duty of the representatives of the people at all times, and on all occasions, to preserve the same inviolable, until a majority of all the free people shall direct a reform thereof” (JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , May 1784, pp. 70–71). The vote was closer (41 to 47) on a resolution to leave the door to revision slightly ajar. A number of bright young men joined JM in voting for reform—among them Wilson Cary Nicholas, John Taylor, and John Marshall—but in the opposition there was a lone figure they could not circumvent—Patrick Henry. So with Jefferson bound for France and concerns in a different sphere, JM looked to another time when the climate of opinion would be favorable toward constitutional reform. Time went by, and the great expectations of 1783–1784 faded.
Eventually, what the reformers could not accomplish in a single state became easier to manage in a Union of thirteen states. Moreover, the great overhaul of the national machinery of government in 1787–1788 eased much of the pressure for local change. By October 1788, JM had already differed with Jefferson’s ideas, as his commentary sent to the Kentuckians about to write a constitution indicates (DLC: Observations on Mr. Jefferson’s draught of a Constitution for Virginia, Oct. 1788). The anxieties of 1784 had long since disappeared when JM was elected an Orange County delegate to the Convention of 1829. JM attended the Richmond gathering as a patriarch and spoke only in a whisper. As the only survivor of the Virginia Convention of 1776, JM then looked on the first constitution with some affection.
[14 or 21 June 1784]
Nature of a Constitution ⟨examd.⟩1
See Mass p. 7, 8. 15, 16
N. Y. p. 63.
Penna. p. 85, 86.
Delaw. p. 106
N. C. p. 146, 150
S. C. p. 158
Georgia p. 175, 186.
Convention of 1776. without due power from people.
- 1. passed ⟨the ordinance for Constn.⟩ on recommendation of Congs. May 15, 1776 prior to declaration of Independence2 as ⟨was done⟩ in N. H. p. 1. & N. J. p. 78–84.
- 2. ⟨passed it⟩ from impulse of Necessity—see last clause of Preamble to Constution.
- 3. before independance declared by Congs.
- 4. power from people no where pretended
- 5. provision for ⟨case⟩ district of ⟨West⟩ Augusta3 p: 140 ⟨in its nature temporary⟩
- 6. other ordinances ⟨of same session⟩ passed by same authority deemed alterable—as ⟨relative to⟩ Salt—Senators—Oaths
- 7. Convention make themselves branch of ⟨the⟩ legislature
Constitution if to be so called defective &c
- 1. ⟨in a⟩ Union of powers of Govt. ⟨which is⟩ tyranny. Montesqueu.
- 2. Executive dependant: ⟨on Legislature⟩ 1. for Salary—2. stigma ⟨for character in the triennial expulsion⟩ 3. expensive—4 ⟨may be⟩ for life contrary to 5 art. D ⟨eclaration of⟩ R⟨ights⟩4
- 3. Judiciary dependent for ⟨amt. of⟩ salary.
- 4. Privileges & wages of ⟨members of Legislature unlimited & undefined⟩ H. D. & Senate neither limited and defd. & ⟨5⟩ Senate restrained ⟨badly constituted & improperly barred of the⟩ from originating ⟨of⟩ laws.
- 5. ⟨6⟩ equality of Representation not provided for Counties as for Cities & boroughs—See N. Y. p. 65
- S. C. p. 165
- 6. ⟨7⟩ Impeachmts. of great moment & ⟨on bad footing.⟩ not on good footing
- 7. ⟨8⟩ County Courts seem to be fixed p. 143. 144.5 ⟨also General Court.⟩
- 8. ⟨9⟩ Habeas Corpus omitted
- 9. ⟨10⟩ No mode of expounding Constitution—⟨& of course no check to Genl. Assembly⟩6
- 10. ⟨11⟩ Right of Suffrage, ⟨not well fixed, quere if popish recusants &c are not disenfranchised?⟩ exclusion of Papists recusants
Constitution rests on acquiescence, ⟨a bad⟩ dangerous basis
- — — —
- revision during the war improper
- — — —
- On peace decency requires surrender of power to people.
- — — —
- No danger in refer⟨r⟩ing to people ⟨who already exercise an equivalent power.⟩
- — — —
- if ⟨no change be made in the⟩ prest. Const. be ⟨it is advisable to have it⟩ ratified by them, more stable ⟨and secured agst. the doubts & imputations under which it now labours⟩.
- — — —
- without it, doubts render it unstable
Ms, Tr (DLC). Both the original notes on a half-sheet and the transcript are in JM’s hand. Variations in the handwriting suggest that JM made additions at some later time, adding portions which are printed here within angle brackets. The docket of the original Ms is in several hands: “Notes June 1784 Speech in Va. Legislature on amendment of State Constitution at May Session 1784.” Headings “II. Paper Money” and “III. Disposition to give Congress regulation of Taxe[s]” have been crossed through.
1. JM’s copy made some time later is headed: “Virga. Legislature For Amending Constitution of Va. 1784.” The page citations were taken from The Constitutions of the Several Independent States of America (Philadelphia, 1781). Francis Bailey printed this compendium by order of the Continental Congress.
2. The line beginning with “prior” and ending at this point appears to have been added to the original Ms by JM at a later day.
3. The “district of Augusta,” the westernmost settled region of Virginia in 1776, was singled out for treatment as a county with two representatives in the House of Delegates. By noting this, JM intended to call attention to the tentative nature of the Constitution of 1776, since there was by 1784 no longer a West Augusta district but rather eight separate western counties. This item was interchanged with item 6 in the later draft.
4. The Constitution of 1776 prohibited the governor from serving “longer than three years successively” and he had to be out of office four years before eligible for reelection. It also provided that two of the eight members of the Council of State should every three years be removed by joint ballot “of both Houses of Assembly,” but since those members most recently elected might be the very ones removed, six members could indeed serve for life. This was in conflict with Article V of the Declaration of Rights that stated legislators and members of the executive should “at fixed periods, be reduced to a private station” (Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , IX, 115, 116, 110).
5. The pages noted from the edition of The Constitutions of 1781, pp. 143–44, are probably cited because the constitution speaks there of “the respective county courts” and court clerks as continuing bodies whose duties & jurisdiction are implicitly to be the same as when Virginia was a royal colony.
6. But a mode of “expounding Constitution” had already been developed by the Court of Appeals in Caton v. Commonwealth (4 Call [Va.] 5; Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , V, 217–19). JM more probably had in mind the chaos likely to result if the right of exposition should be claimed by other officials (ibid., VI, 346–47, 347 n. 5).