THE war and the Declaration of Independence were not precisely welcome events to the conservative planters, who nevertheless shared both in waging the war and bringing about the Declaration. They were active patriots, it should be understood, but with regrets: history, which is to a certain extent obscured by the necessary use of party names, has no exact term that fits them - Henry is so distinct a figure; Pendleton so difficult to label definitely. The obscurity is due in part to the fact that the different elements of the great patriot party have not been studied discriminatingly; we have been too much given to dividing the people of the colonies into sheep and goats, patriots and Tories; when, in fact, the line of demarcation was frequently slight and rather a tendency than a principle; - at least, in the beginning and before the realities of war definitely hardened the division into friends and enemies.
War was depressing to the conservatives because it meant the failure of their own particular form of resistance to England. They had placed great faith in the Continental Association and enforced it with vigor and intelligence in their stronghold in eastern Virginia, in the hope that the British government would be so impressed by a united colonial resistance as to give up its efforts to extend imperial jurisdiction in America. Even when this boycott policy proved ineffective, the conservatives, as we have seen, struggled through nearly all of 1775 in an attempt to avert war in Virginia and to secure an understanding with Dunmore. Nor did they abandon hope of reconciliation with England for some time after the beginning of hostilities in the colony itself. The planter class, which largely controlled the assembly, entered on the struggle without a thought of independence. Only when the vigorous military policy of the British government left no doubt of its intention to conquer the colonies did the conservatives realize that separation was inevitable. The rebellion had developed into a prolonged contest between what were practically separate nations, to be fought out in regular campaigns. Then, with reconciliation a vanishing dream and a parting of the ways a present necessity, the planter class, instead of splitting into American and loyalist parties as in some other colonies, cast its decision unitedly for independence and ruthlessly overrode the scattered individuals who demurred. For while the tidewater country gentlemen were proud of their Anglican connection, they were also prepared to go any lengths in asserting the rights of Englishmen, as they conceived them, and they had now lost all illusions as to the possibility of coercing the British government into compliance with colonial demands. There was small opposition in Virginia to the Declaration of Independence: Robert Carter Nicholas, alone of important men, opposed it. At the same time to Pendleton, Bland, and their confreres, who had rejoiced over Wolfe's victory at Quebec, independence was not a thing so desirable in itself as it was to young radicals like Henry and Jefferson, who had lost all English feeling and become Americans. It should never be forgotten that in the eyes of the older men the Revolution was a conservative movement, an effort to uphold their liberties against the encroachments of imperialism.
Eighteenth-century liberalism had little touched this older generation. Their ideal state was no borrowed vision from Rousseau, but the colony as they knew it, unhampered by a governor's meddling and a royal veto; they would have been well content with a governor whom they could keep browbeaten and a home administration considerate enough to ignore them. Revolution was not their fancy. They wanted the gods to nod on Parnassus - or even to snore - but they wanted the gods. They thought English thoughts and upheld English institutions and condescendingly looked down on dissenters and democrats as not of themselves. Therefore, separation from Great Britain, carrying with it the necessity for a readjustment of the constitution, was a sad necessity to the conservatives and an embarrassment besides. So long as the patriots continued to fight within the British Empire, the issues remained political and chiefly external; but independence at once raised the question of institutions and let into the arena the tribe of discontented, religious dissenters and social reformers, who wished to alter the structure of the state. The whole character of the Revolution underwent a change; no taxation without representation was superseded by other denials. In fact, the motives of the planters in embarking on the struggle with England and the political and social developments that followed bear a certain resemblance to the course of the French Revolution. That great movement was not social in its inception, but rather economic: it was brought on by the government's financial difficulties and by efforts at remedy, and ended in anarchy; from 1789 to 1794 is a far cry. Similarly, the Revolution in Virginia began with the colony's resistance to the aggressive policy of the Tory ministry, and the men who led the revolt, and in whose hands political power mainly lay, had little thought of the betterment of society. But it is the history of revolutions that they seldom keep to the issue at stake, broadening out from a contest over a constitutional point into some large assertion of liberty. In several of the American colonies, where society was on a more simple and equal footing, this development was not marked, but in Virginia, with its fairly definite class distinctions, an attack on existing customs and institutions was inevitable. The Revolution in Virginia began with the rights of America and ended with the rights of man. In Virginia the social side of the Revolution was incomparably more important than in any of the other colonies, because there alone the upper class was numerous, powerful, and united in the patriot party, while the democratic opposition was also strong and ably led - in a word, the elements existed for a genuine and long-lasting political struggle.
The rise of democracy had been foreshadowed by the rapid spread of dissent in the decade preceding the Revolution and by Patrick Henry's career as an agitator, but no legal reforms were secured before 1776, and the conservatives prevailed over Henry in the opening months of the Revolution. Separation from England proved fatal to their party; for, though it was nearly equal in number to the progressives in the Convention of March, 1775, and controlled the Committee of Safety, it formed a decided minority in the May, 1776, Convention, which had as its chief duty the organization of an independent government. Outnumbered as they were and put on the defensive by the untoward development of the Revolution, the conservatives nevertheless struggled hard for the mastery of the convention, and, when their own efforts at initiative hopelessly failed, used obstructive tactics with skill and obstinacy. The differences between conservatives and progressives were fundamental. The former wished the Revolution to end with separation from the British Empire, without touching the framework of colonial law and society; they hoped to continue the colonial constitution and the colonial church minus the British interference. The progressives, on the other hand, sought to establish a government of equal rights, a democratic state. Both sides had representatives of weight and ability in the constitution-making May Convention. Among the progressives were Patrick Henry, disappointed in his military ambition and back in his old place; Mason, full of generous political theories; and the young James Madison, now displaying his great abilities for the first time. Pendleton's prestige, notwithstanding, still stood so high that he was once more elected president of the convention over the progressive candidate, Thomas Ludwell Lee, and he could still count on the wide influence of Nicholas and Bland.
The debate over the question of independence was brief, but not altogether uneventful. Henry proposed radical resolutions of separation, leaving to the Continental Congress the duty of providing a new form of government for the colonies. The conservatives, however, supported Pendleton's resolutions, which simply declared Virginia free and independent. Henry, thereupon, in the interests of harmony, abandoned his own plan and aided in passing the conservative declaration of independence. Thus, Virginia, first of the American States, broke the connection with England, acting on her own initiative and without reference to Congress. The convention then went on to the work of framing a constitution - the first written constitution given to the world.
The all-important committee appointed to propose a plan of a constitution included Henry, Bland, Nicholas, Mason, Madison, Archibald Cary, Edmund Randolph, and Paul Carrington - a marvelously gifted group of men. Patrick Henry, the man of the people, naturally led the democrats, Nicholas the conservatives, while Pendleton was the main opposition leader in the committee of the whole. Henry reported to his colleague, Richard Henry Lee, then in Congress, on May 20, 1776:
The grand work of framing a constitution for Virginia is now before the Convention .... Perhaps I am mistaken, but I fear too great a bias to Aristocracy prevails among the opulent. I own myself a Democrat on the plan of our admired friend, J. Adams, whose pamphlet I read with great pleasure.<a href="#1" class="toolTip" title="Footnote: 1
Henry's Patrick Henry, i, 411; The Nation, 51, 107-09.">
And to John Adams himself he wrote:
Our convention is now employed in the great work of forming a constitution. My most esteemed republican form has many and powerful enemies. A silly thing, published, in Philadelphia, by a native of Virginia, has just made its appearance here strongly recommended, 't is said, by one of our delegates now with you Braxton. His reasons upon and distinctions between private and public virtue are weak, shallow and evasive, and the whole performance an affront and disgrace to this Country; and, by one expression, I suspect his whiggism.<a href="#2" class="toolTip" title="Footnote: 2
Henry's Patrick Henry, i, 413."> The conservatives tentatively put forward this constitution advocated by Carter Braxton and supposed to be written by him. It was rather closely modeled on the colonial constitution, providing a house of representatives elected by the people, which, in turn, chose a council to hold office for life and sit as the upper house in place of the colonial council appointed by the king. The assembly elected the governor and a privy council to assist him; the governor appointed judges and military officers, and the lower house the other chief officials of the State.
The progressive majority, scarcely considering this old and illiberal model, quickly took up George Mason's plan of government, beginning with the Bill of Rights. The conservatives, though too few in number to prevent the passage of this declaration, filibustered on every clause. Thomas Ludwell Lee indignantly wrote Richard Henry Lee on June 1, 1776:
A certain set of Aristocrats - for we have such monsters here finding that their execrable system cannot be reared on such foundations, have to this time kept us at bay on the first line, which declares all men to be born free and independent. A number of absurd or unmeaning alterations have been proposed. The words as they stand are approved by a very great majority, yet by a thousand masterly fetches and stratagems the business has been so delayed, that the first clause stands yet unassented to by the Convention.<a href="#3" class="toolTip" title="Footnote: 3
Henry's Patrick Henry, i, 425.">
And Randolph adds:
The declaration in the first article of the bill of rights, that all men are by nature equally free and independent, was opposed by Robert Carter Nicholas, as being the forerunner or pretext of civil convulsion. In spite of conservative opposition to liberal political philosophy, which was now finding place in practice, the progressives succeeded in passing George Mason's preamble to a constitution. The Virginia Bill of Rights is one of the noblest of political documents. Based primarily on the Petition of Rights and the Bill of Rights of 1689, it included much of eighteenth-century theory besides those guarantees of freedom incorporated in the British constitution. The opening statement of the equal right of all men by nature to freedom, independence, and enjoyment of life, liberty, and happiness was destined to become immortal when touched by Jefferson's pen in the Declaration of Independence. Other sections affirm the sovereignty of the people and the rule of the majority; separate the legislative branch of government from the executive and judicial; provide against continuous occupation of office; confirm suffrage rights, trial by jury, and the freedom of the press; and declare the subordination of the military to the civil power. The most important section made a full grant of religious freedom. This clause was attributed by Edmund Randolph to Henry, and was altered by Madison, who struck out the word "toleration" in order to broaden the assertion of liberty. The conservatives made a strong stand against it, for they feared, not without reason, that it premised an attack on the established church.<a href="#4" class="toolTip" title="Footnote: 4
Henry's Patrick Henry, i, 431."> After a sharp contest, Henry and the progressives succeeded in carrying it.
After the Bill of Rights came the constitution, also written by Mason, but less completely his work. It is probable that Jefferson's ideas, as communicated to the constitution-makers by his personal representative in the convention, Edmund Randolph, had some weight. The new organ of government mainly followed the lines of the colonial constitution and was strongly influenced by John Adams's "Thoughts on Government," which was Henry's guide. It provided a lower house and a senate elected by freeholders and a governor elected by the two houses, which also elected most of the other officers. Representation continued, as in the colonial past, to be of counties instead of population, a feature peculiarly objectionable to Jefferson and one destined to excite many murmurings of discontent in the west, which was the under-represented section. Small counties like Warwick with only a few hundred voters elected two delegates just as did large counties with several thousand voters. In the senate, however, representation was more nearly equal. The suffrage limitation to freeholders owning fifty acres of land was not illiberal in a country where land was cheap. All in all, the constitution was less advanced than the Bill of Rights, and left the laws and machinery of government much as before, except that the lower house, freed from the restraining veto of the colonial governor and not yet adjusted to the limitations of the new constitution, had greater power than the old House of Burgesses. The constitution, in fact, was somewhat negative; it outlined what could not be done rather than what could, and, under its forms, the future government of Virginia might be the same oligarchy of planters it had been in the past, or genuinely democratic; everything depended on the political complexion of the majority in the House of Delegates.
After the adoption of the constitution, the convention proceeded, on June 29, 1776, to elect the first governor of the Commonwealth. The progressives could not have thought of presenting any other candidate than Patrick Henry, the foremost figure of the Revolution and the most popular man in Virginia. The conservatives, still smarting from their defeat on the Bill of Rights and fearful of the future, made a last effort to keep the highest place in the government from the leader who had so long opposed them and whom they had succeeded in thwarting in his great ambition. They accordingly nominated Thomas Nelson, president of the colonial council and one time acting governor, a passive loyalist. Randolph says of his candidacy:
Nelson had been long 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 being nominally the governor under the old order of things, and out of one hundred and eleven members, forty-five were caught by the device 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.<a href="#5" class="toolTip" title="Footnote: 5
MS. History. Virginia Historical Society.">
The conservatives, with their impossible Tory candidate and their still more impossible harking back to the colonial constitution, nevertheless made a good showing, mustering forty-five votes to Henry's sixty. And in the election of a privy council to advise the governor they had things their own way, possibly because the convention may have thought that Henry needed a balance. It could not foresee that the agitator would be sobered by time and responsibility into a conservatism almost Bourbon.
Patrick Henry, after a decade of stormy political life, now became the first magistrate of the largest American State. His election at such a time of crisis as the summer of 1776 testifies to the confidence put in him by the public and to his wide influence, which were no more than what his services to the Revolutionary cause deserved. But the great orator lost rather than gained by his elevation. His gifts were distinctly forensic, not executive; he had no liking for the dry routine of government. His administration, therefore, was mediocre, while, unfortunately for him, his office cut him off from the assembly, the one real power in the State, which had not yet become entirely freed from colonial mistrust of the executive. Because of this reserve, this instinctive clinging to tradition, the actual first place in the new government passed to the leader of the House of Delegates, who happened to be the astute and pushing Jefferson, just returned from Congress in order to work out his social reforms in Virginia.
The rival democratic leaders were not only unlike in temperament, but in outlook. Patrick Henry was essentially an agitator and one of the ablest that ever lived, the first great representative of the American democracy and still its most splendid and magnetic personality. Since his career was confined to Virginia save for three brief terms in the Continental Congress, Henry is much less generally known than Jefferson, who was greatly inferior to him in most of the qualities of leadership. Nevertheless, Jefferson, though gifted with nothing of Henry's eloquence and little of his charm and power, succeeded in displacing him as the head of his party in Virginia and in occupying the position which should have been his by historical development, that of founder of the national Democratic-Republican Party and President of the United States. Jefferson, in all probability, would have eventually replaced Henry even if the latter had remained in the assembly instead of retiring into the governorship, for the orator was a political radical rather than a social reformer and much of a conservative at bottom. He was too acute to become a Rousseauan doctrinaire like his rival, mistrusting human nature because he knew it so well. More than that, deep down in him he was a localist; he loved the old ways, the ancient landmarks, and had no wish to live in an un-Virginian Virginia given over to the strange gods of liberal philosophy. The Revolution for him had ended with the establishment of a commonwealth under a constitution of equal political rights; he wanted no further egalitarian advances. In some way, too, hard to explain, the man had changed since his disappointment in military command. Up to that time he had been a Boanerges; after his return to civil life he settled down from fiery action into the humdrum round of office routine for which he was so unsuited; his ambition narrowed, his imagination failed. Few psychological studies are more interesting than the transformation of the radical, prepared in 1775 for any bold advance upon the future, into the obstructionist fighting his last great fight against the adoption of the Federal Constitution and magnificently losing.
For Jefferson, on the other hand, the Revolution only began with the Declaration of Independence. That was necessary in order that other things might follow - that wrongs might be redressed, inequalities leveled, and the State brought to the Utopian perfection all generous thinkers demanded; freedom from England was only the condition of political and social development. For this reason, Jefferson, with his definite reforms, must have supplanted Henry, who had no programme at all to offer, especially in an age of dreams when prophets often prevailed over men of action. As for the reformer himself, he was a curious mixture of prophet and practical politician, a sort of common-sense Robespierre, devoid of Robespierre's fanaticism and essential madness; what he could do to advance the rights of man he did, and for the rest - the more he could not do - was satisfied to leave to another age. That he was sincere need not be questioned; his enthusiasm began in youth and continued through life. Democracy was a religion to Jefferson, and, with all his tortuous politician's soul, he held fast to the faith, even amidst the disillusionment of the French Revolution; it was to him the miracle that makes dry bones men, the power destined in time to heal the sorrows of the world.
Needless to say, the constitution of Virginia did not meet with Jefferson's full approval, because representation remained on its old undemocratic basis and other abuses of the colonial era continued to exist. But as the assembly wielded great powers, in spite of the limitations of a written constitution, society might be transformed by legislative enactment. The member from Albemarle consequently brought forward his measures at the first session of the assembly of the Commonwealth, in October, 1776. Most noted of these reforms was the abolition of entail, which Jefferson carried in the face of a passionately resisting minority led by Pendleton; but even more important 'vas his work in humanizing the Virginia criminal code, which he eventually managed to accomplish. Primogeniture was the pet Virginian imitation of the English aristocracy, and Jefferson proved to the satisfaction of the democratic majority in the House of Delegates the injustice of the system by unanswerable if somewhat shallow logic. Entail had been of small importance in the rough early days when land was too abundant and cheap to need such safeguarding, but it became one of the bases of colonial society in eastern Virginia in the eighteenth century, when all the good lands in that section had been patented and extension into the western hinterland was attended by the discomforts of border life and the occasional risk of Indian forays. The conservatives, rightly feeling its importance to the aristocracy that had grown up partly by its aid and was now staggering under the Revolutionary blast, struggled hard in its defense, but vainly. Jefferson cut away this great anomaly in the democratic republic, which the constitution had left untouched.
The successful innovator immediately proceeded to attack the social order in another vital spot, the established church. What was the full meaning of the religious liberty clause in the Bill of Rights nobody knew. Beyond doubt it removed restrictions on worship, such as the requirement to take out licenses for dissenter meeting-houses and the prohibition of itinerant preaching, but whether it cut all connection between dissenters and the state church whether it continued the state church, in fact - remained uncertain. Should the whole population, or only professed Anglicans, or anybody at all pay tithes? Dissenters held that the Bill of Rights ended all involuntary religious relations whatever, whether of opinion or money contribution. Conservative Anglicans just as positively maintained that it merely intended the ease of tender consciences and not the curtailment of the establishment. Public opinion was divided, but probably a majority of the people opposed the overthrow of the church they had been raised in and undoubtedly a majority of the assembly did. Jefferson worked round the problem with characteristic shrewdness. A direct attack on the establishment would have failed, and, indeed, only after a struggle Jefferson describes as the severest he ever engaged in did the progressives succeed in repealing the existing acts on the statute books concerning religious worship, clearly incompatible as these were with the Bill of Rights. The repealing act, besides sweeping away the whole English system of religious restraint, exempted dissenters from contributing to the support of the establishment and suspended the salaries of all ministers until the next meeting of the assembly. This last, apparently rather innocent stipulation, proved fatal. In revolutionary times, with the spirit of liberalism rapidly growing, it was not likely that state support would be renewed, once discontinued. A number of brief suspensions postponed the settlement of the matter of tithes from 1776 to 1779, each one lessening the church's chances of rehabilitation.<a href="#6" class="toolTip" title="Footnote: 6
Separation of Church and State in Virginia, 64-55.">
Jefferson, in his career in the Virginia assembly, struck the old order other and almost heavier blows. He revised the laws in the interests of humanity, abolished the general death penalty for felony, - that relic of common-law barbarism which had cost so many thieving blacks their lives, - and attempted to secure universal education. He even drafted a bill for the gradual emancipation of slaves, but never introduced it. His was the chief part in the removal of the capital from Williamsburg, the center of tidewater social life, to the village of Richmond, a move engineered ostensibly to secure safety from British raids, but in reality to weaken the conservative faction. Richmond, indeed, proved rather more accessible to invaders than Williamsburg. The early part of 1777 saw Jefferson in the ascendant, and he remained so until 1779. At the May, 1777, session of the assembly, he nominated George Wythe for speaker of the House of Delegates against the conservative candidates, Robert Carter Nicholas and Benjamin Harrison, and secured his election.<a href="#7" class="toolTip" title="Footnote: 7
Randall's Life of Thomas Jeferson, i, 209."> This was an important event in party progress, for hitherto the office of speaker, occupied by Edmund Pendleton, had been a conservative stronghold. With its acquisition the democrats held control of all the governmental machinery.
But the conservatives, weak as they were in the fervid year of 1776 and for some time thereafter, began to gain strength with the long continuance of the war. They always had a solid corps of tidewater delegates to count on, and they became sufficiently emboldened by June, 1779, when Jefferson was elected governor to succeed Henry, to make a bid for the reestablishment of religion on the basis of a common state support for all churches. This project was offered in opposition to Jefferson's Bill for Religious Freedom, introduced at the same session and intended wholly to sever religion from political and legal connection. At the same time, that moderate democrat, George Mason, brought forward a compromise scheme to preserve the property of the colonial church to the Anglicans without establishment, but this failed along with the Bill for Religious Freedom and the conservative bill for aiding all religions. The only result of a long debate was the final repeal of the old act of 1748 providing salaries for ministers, the act suspended from session to session since 1776.
By the mid-Revolutionary year of 1779 the Commonwealth bore all the marks of a permanent state, and loyalism, except around Norfolk, had been pretty generally repressed. The Scotch merchants and clerks who had bargained at every village and crossroads were now banished refugees, as well as the few native Virginians devoted enough to cling to the imperial cause in spite of all. But the political and social ideals of democracy had not yet prevailed; the conservatives, who saw what the progress of the Revolution meant, continued to oppose it and only waited a favorable opportunity to make their opposition effective. They needed two things - a means of discrediting their opponents and relief from the pressure of war, which concentrated attention on military affairs and tended to break down social distinctions. The first want was supplied by the failure of Jefferson's administration; the second came a little later with the treaty of peace in 1783.