Madison and Jefferson (11 page)

Though Edmund Pendleton was the arranger of most political activities,
the leading light in Williamsburg at this time was George Mason, the self-sufficient scholar-aristocrat who, like Jefferson, tended to confine his activism to the printed page. Mason had taken the lead in drafting the Virginia Declaration of Rights in May and now oversaw production of the state’s constitution in June. Passed just days before the Declaration of Independence was approved by Congress, Virginia’s constitution established a bicameral legislature composed of the House of Delegates (the real lawmakers), whose members were to be popularly elected for single-year terms, and a Senate, whose members were also popularly elected, but for a four-year term. The Senate did not introduce bills, but only put its stamp on those the House of Delegates initiated.

The governor, lacking veto power, was a weak executive by modern standards, voted into office by the Assembly and responsive to a revolving, eight-man council, his official advisers. A strong governor would have stirred fears of executive tyranny in these times. Patrick Henry fought unsuccessfully for the governor’s veto right, once he realized that he was likely to be elected governor.

Madison witnessed a fair bit of disputation over how to create constitutional government at the state level. His concern in 1776 was the same as it would be in Philadelphia in 1787: how to build political institutions without making them susceptible to corruption. It was hard to say whether Virginia even had a popular government in 1776. In later years, looking back at the Revolutionary era, Madison tended to emphasize the Virginia constitution’s flaws over its laws. Early in their collaboration, he and Jefferson would find common cause in urging improvements to that constitution, only to find that their colleagues did not care to tamper with it. Civil and criminal codes, yes, but not the state constitution.

Jefferson was noticeably frustrated over the summer months. He hoped to make his mark on the Virginia constitution, but mail between Philadelphia and Williamsburg traveled too slowly for his opinion to count. His proposed plan of government arrived only after debate had ceased. An innocuous preamble was all that the convention adopted that reflected his language.

He wanted the constitution to issue a strong statement about religious freedom, and to be subject to popular review. He also wanted it to give
greater voice to the western counties. As things stood, Williamsburg and the eastern Tidewater, areas embracing the most privileged of Virginians, continued to dominate the government. Jefferson would eventually succeed in moving the capital inland to Richmond, but as yet his impact was slight. He wanted to expand suffrage to smaller landowners by awarding fifty acres to any white man who had attained the age of twenty-one. This would have enfranchised thousands in the western part of the state. He also proposed an end to the importation of slaves.

Madison and Jefferson appear to have had no direct knowledge of each other’s opinions as yet, though they felt similarly on these subjects. Separately, they weighed the question of who should elect the governor: the legislature, or property holders at large? As the Virginia Convention finalized the constitution and recessed for the summer, Jefferson waited uneasily for news from home. Pendleton wrote, likening the new constitution to a plant whose friends would have to “prune exuberances” from it.
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Finally, Jefferson was freed from his duties in Philadelphia. He left the city on September 3, 1776, and six days later rode up his “little mountain” to Monticello, laden with gifts for his wife, Patty. She was a capable manager of the property in her husband’s absence, said within the family to possess “a lively play of fancy,” a talent for singing and playing the harpsichord, and an “impulsive disposition.” For the rest of September, her politician husband tended to household affairs, hiring a bricklayer and paying two of his slaves to clean the chimney. Then, so that he and his wife could comfortably set out together for Williamsburg, Jefferson called in a doctor to tend to her concerns.

Married at seventeen and widowed at nineteen, Patty was pregnant for the fourth time. She had delivered a son who did not long survive her first husband, though the boy lived long enough that Jefferson was prepared to become his stepfather. Six years younger than Jefferson, whom she married at twenty-two, on January 1, 1772, Patty had since given birth to two daughters, only one of whom survived infancy. Little Patsy Jefferson had just celebrated her fourth birthday when the family of three arrived in Williamsburg on October 7, 1776, and took up quarters at George Wythe’s house.
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Jefferson immediately assumed his seat in the House of Delegates. Madison arrived one week later. Pendleton, who knew Jefferson’s temperament, had earlier appealed to him in dramatic terms: “Having the Pleasure of Mrs. Jefferson’s Company, I hope you’l get cured of your wish to retire so early in life from the memory of man, and exercise Your talents for the nurture
of Our new Constitution.” The warhorse of legislatures past knew that Jefferson missed Patty, and he knew enough to expect Jefferson to ride into town charged up, armed with a plan to republicanize government.
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That is precisely what occurred. On October 12 Jefferson the Virginian sprang into action, introducing a motion to consider a general revision of the laws of the state. The comprehensive plan he envisioned would restructure the system of criminal laws, liberalize religious life, and expand education beyond the gentry. The state constitution had passed him by, but there were other things he could do to empower the rising generation and satisfy his personal need to institute reform. On October 26 the bill passed, and a special committee was created to rethink the legal system. It consisted of Jefferson, Pendleton, Wythe, Mason, and Thomas Ludwell Lee (Richard Henry’s older brother).

When he joined with senior lawmakers Wythe and Pendleton, Jefferson did not consider their effort a piecemeal project to treat distinct laws. He had a far-reaching formula in mind, linked to the theories of manners and mores that had influenced both the
Summary View
and the Declaration of Independence. Jefferson thought big. He saw the law as a record of national character and believed that by changing its laws, Virginia would transform itself into a modern, more enlightened republic. His particular conceit was the belief that Virginia’s experiment—Virginia’s gain—should become nothing less than a blueprint for the rest of America.

The mid-eighteenth century relied on the law to moderate human passions. Madison, Jefferson, and those like them who pioneered progressive legislation deliberately supplemented their formal legal educations with the philosophical works of John Locke, David Hume, and their French counterparts—writers whose ideas on human understanding, social behavior, and natural rights excited the hopes of the Western world. When he wrote of “life, liberty and the pursuit of happiness,” or claimed in his encyclopedic
Notes on Virginia
a few years later that it was “the manners and spirit of a people which preserve a republic in vigour,” Jefferson was under the spell of the law.

Attempting to find a set of universal principles for human nature, Madison and Jefferson and Enlightenment thinkers like them were in the process of developing what Hume called a “science of man.” Politics was a moral science, the laws an indicator of the health of society. In composing the most famous of his
Federalist
essays, seeking constitutional remedies for the natural appearance of factions, Madison postulated that nations were nothing more than collections of individuals, and national boundaries
more moral than physical. If similar manners served to unite, free communication created tension too and made the existence of faction inevitable. The science of man was about finding practical solutions to natural impulses.
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As Jefferson embarked on his revisal of the laws, he imagined himself a social engineer. His laboratory, at this point, was Virginia alone. The government’s first duty, as he saw it in the fall of 1776, was to remove disabling customs—those that deprived people of their liberty. Rich and poor, powerful and powerless, all lived in an artificial society where smoldering passions corrupted manners. New laws would not only cleanse the statute books but also encourage the exercise of conscience. The best way to triumph over antiquated ideas, Jefferson believed, was to diffuse knowledge among the free population. This would be Virginia’s contribution to the Enlightenment.

He saw Virginia as a distinct country whose citizens were imbued with that liberty-loving Saxon heritage he had extolled in
A Summary View.
They, like their forefathers, aimed to acquire land, civilize wilderness, and take advantage of self-government. But Virginia was not without its glaring defects and degenerative tendencies. After generations of colonial rule, an entrenched slaveholding oligarchy (what he later called a “pseudo-aristocracy”) had left a large segment of the white population landless and disenfranchised. Liberation from colonial constraints was not enough: the state had to return Virginia to first principles and create a pastoral order that would recover Saxon values and nurture the virtues Jefferson believed most attainable in an agrarian republic.

His classical understanding of a republic involved a majority of independent freeholders having a real stake in society and a real voice in their government. Toward this end, he came up with four principal reforms: first, a more equitable distribution of land, especially with a view to the rights of future generations; second, the gradual abolition of slavery; third, universal public education and a reorganized court system, meant, in combination, to promote a knowledgeable leadership class; and fourth, disestablishment of the Anglican Church, which would free up its lands and substitute for a flawed model of moral supervision (suited, in Jefferson’s mind, only to a monarchy) a more enlightened system of tolerance and benevolence.

The first reform Jefferson introduced came under the heading of property law: elimination of entail, which maintained a landed elite from generation
to generation. Entail created “unnatural distinctions,” he said, and doing away with it would rid Virginia of “every fibre … of an ancient or future aristocracy.” Along with the feudal form of entail, Jefferson called for an end to primogeniture, which consolidated land in the hands of the few by passing it from fathers to firstborn sons only.
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The practice of entail in Revolution-era Virginia made it impossible for the heirs of a wealthy landowner to sell or bequeath his land. An heir could farm the land and build on it, but he did not own the property outright and could not freely dispose of it. The land belonged to his heirs, in succession, which usually meant each firstborn son.
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Jefferson considered this practice dangerous to the life of a republic. The dead hand of long-lost relatives still reached from the grave to control the distribution of property among successive generations. Distribution of property became more and more inequitable over time, as larger chunks of land were concentrated in fewer and fewer hands. If so few families monopolized so much land, Virginians would grow ever more dependent on slavery as slaves were entailed with the land—much as peasants were in feudal Europe.

Entail lay at the heart of Virginia’s slaveholding oligarchy. Its overthrow may have been Jefferson’s most radical reform. As a resident of the Piedmont, an area of Virginia that was settled relatively late, he was taking on the wealthy planters of the eastern Tidewater. For decades they had controlled the House of Burgesses, their power enhanced by an antiquated system of inheritance. By the Revolution, most Virginia real estate was entailed. Jefferson’s initiative would release as much as three-quarters of entailed land, democratizing the distribution of property for future generations.
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He had personal reasons for disliking entail. In 1774 he had persuaded the House of Burgesses to allow him to dispose of twelve hundred acres entailed by his wife’s father. Governor Dunmore never signed off on it, and he was unable to sell the property. To make matters worse, when Jefferson introduced the bill to abolish entail in the fall of 1776, his chief opponent was his chief ally, Edmund Pendleton. The bill had no problem passing the legislature, but a few aristocratic gentlemen took offense at this imposition on their preeminence. Pendleton wished to make the elimination of entail voluntary in order to maintain harmony within the circle of leadership. But the more conservative of large landowners were outraged by Jefferson’s audacity. Tidewater planter Carter Braxton called his land reforms
“Chimerical Schemes,” “wild flights of these fanciful Genius’s.” It was probably the first time that a political opponent dismissed Jefferson as a dangerous visionary. It would not be the last.
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The second component of Jefferson’s revisal of the laws, slavery, would take a long time to resolve. He fully expected it. Aside from any humanitarian considerations he might have had, Jefferson recognized that the institution of slavery was a deterrent to the improvement of manners, morals, and laws. Weakening the slaveholding oligarchy involved more than instituting land reform; it required undertaking a most proactive kind of social engineering. To be clear, no one on the Virginia political scene was advocating mass emancipation. Freedom for blacks and biracial Virginians might have been seen by some whites as a desirable consequence of Revolutionary action, but a broad liberation plan was not going to be approved, certainly not in the wake of Dunmore’s arming of escaped slaves. In Jefferson’s circle, and Madison’s as well, there was no call for freed slaves to remain in the state and acquire the rights of citizens.
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Jefferson’s goal was to reduce the slave population and put slavery on the path to extinction. Ending the importation of slaves, which the Assembly would agree to in 1778, was one way to move in this direction. And Jefferson was pragmatic enough to understand that there would have to be certain exceptions to any emancipation plan. He could not expect to abolish inheritance of slaves; or to free those obtained through marriage, or those brought into the state by new residents. He did, however, believe that newly arrived slaves should be granted freedom after five years.
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