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9. Revolution and Reform
r. Jefferson took his seat in the Legislature of Virginia on the 7th of October, 1776, the opening day of the session. The first object of reform which arrested his attention was the Judiciary System, the organization of which upon the broad basis of reason and common sense struck him as a measure of the first importance. Besides being indispensable to meet the external revolution of the government, such a scheme of improvement was eminently calculated to gain popular favor for the new order of things -- which should always be the first object of the reformer.
On the 11th of October, therefore, he obtained leave to bring in a Bill for the establishment of Courts of Justice. The proposition was referred to a committee, of which he was chairman. He drafted the ordinance; submitted it to the committee, by whom it was approved; and reported it to the House where, after passing through the ordinary course, it was adopted with unanimity.
The system proposed by Mr. Jefferson was simple in its organization and highly republican in its spirit. It was retained for many years essentially unaltered in the legal code of Virginia. It established the model for succeeding Legislatures in different States as they successively proceeded to the same duty, and its main features were observable in the Judiciary Systems of all our State governments.
It divided the State into counties and erected three distinct grades of Courts: County, Superior, and Supreme. The quality and extent of jurisdiction prescribed to each grade were similar to the prevailing division on that subject in the federal courts. The trial by jury was guarded with extreme circumspection. In all questions of fact and law combined, the reference to a jury was made imperative in the courts of law, and the framer of the bill had designed to make it imperative also in the court of chancery; but the provision was defeated in the House by the introduction of a discretionary clause on motion of Mr. Pendleton, a gentleman of high English prejudices. The consequence has been that no suitor will say to his judge what amounts to, "Sir, I distrust you. Give me a jury!" Juries are rarely, perhaps never, seen in that court but when ordered by the chancellor of his own accord.
On the following day, October 12, Jefferson brought forward his celebrated bill for the abolition of the Law of Entails. This was a cardinal measure and a bold one for the political semi-barbarism of that age. Nor could a body of men have been easily selected upon whose sensibilities the proposition would have grated with more harshness than upon the aristocracy of a Virginia Assembly. The strong lines of discrimination impressed upon the society of Virginia during the early stages of the settlement are celebrated in history; nor has the genius of her republican institutions been entirely successful in obliterating those artificial and dissocial distinctions, or in extinguishing the high aristocratical spirit which they engendered. "In the earlier times of the colony," writes Mr. Jefferson, "when lands were to be obtained for little or nothing, some provident individuals procured large grants; and desirous of founding great families for themselves, settled them on their descendants in fee tail. The transmission of these estates from generation to generation in the same name raised up a distinct set of families who, being privileged by law in the perpetuation of their wealth, were thus formed into a Patrician order, distinguished by the splendor and luxury of their establishments." (Autobiography, 1821. ME 1:54) This order, having in process of time engulfed the greater part of the landed property and with it the political power of the province, remained stationary, in general, on the grounds of their forefathers; for there was no emigration to the westward in those days. The Irish, who had gotten possession of the valley between the Blue Ridge and the North Mountain formed a barrier over which none ventured to leap, and their manners presented no attractions to the opulent lowlanders to settle among them.
"In such a state of things," says Mr. Jefferson, "scarcely admitting any change of station, society would settle down into several strata, separated by no marked lines, but shading off imperceptibly from top to bottom, nothing disturbing the order of their repose. There were, then, first aristocrats, composed of the great landholders who had seated themselves below tide-water on the main rivers and lived in a style of luxury and extravagance, insupportable by the other inhabitants, and which indeed ended in several instances in the ruin of their own fortunes. Next to these were what may be called half-breeds: the descendants of the younger sons and daughters of the aristocrats, who inherited the pride of their ancestors without their wealth. Then came the pretenders: men who from vanity or the impulse of growing wealth, or from that enterprise which is natural to talents, sought to detach themselves from the plebeian ranks to which they properly belonged and imitated at some distance the manners and habit of the great. Next to these were a solid and independent yeomanry, looking askance at those above, yet not venturing to jostle them. And last and lowest, a feculum of beings called overseers: the most abject, degraded, unprincipled race; always cap in hand to the dons who employed them, and furnishing materials for the exercise of their pride, insolence, and spirit of domination." (to William Wirt, August 5, 1815. ME 14:337) [note]
By birth and fortune, Mr. Jefferson belonged to the aristocracy; but his intellectual habits made him revolt at the indolence and voluptuousness which marked the lives of that order, and his political principles attached him by early and indissoluble sympathies to the solid and independent yeomanry.
"Those who labor the earth," he early declared, "are the chosen people of God, if ever He had a chosen people, whose breasts He has made His peculiar deposit for substantial and genuine virtue. It is the focus in which He keeps alive that sacred fire which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example. It is the mark set on those who, not looking up to heaven, to their own soil and industry, as does the husbandman, for their subsistence, depend for it on the casualties and caprice of customers. Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition. This, the natural progress and consequence of the arts, has sometimes, perhaps, been retarded by accidental circumstances; but generally speaking, the proportion which the aggregate of the other classes of citizens bears in any State to that of its husbandmen is the proportion of its unsound to its healthy parts, and is a good enough barometer whereby to measure its degree of corruption." (Notes on Virginia, 1782. ME 2:229)
Impressed with these strong, unsophisticated views, he beheld with an incessant desire of reformation the anti-republican features which characterized the social state of Virginia. The Law of Entails was the key-stone of this pernicious superstructure. Besides locking up the lands of the Commonwealth in the hands of a fixed nobility and thereby discouraging immigration, it legitimated the mastery of might over right, and in the most effectual forms. It was a weapon which the law itself superadded to the multitude of natural means to assist the strong in beating down and trampling upon the weak. It enabled the original and opulent proprietors of the "Ancient Dominion" or their descendants to perpetuate the supremacy of wealth over talents and virtue, and to entail upon society forever the most disastrous corruptions of monarchy. Creditors were defrauded of their honest debts, and bona fide purchasers were, in many instances, either deprived of their title altogether, or compelled to resort to courts of justice to substantiate it against innumerable entails. The abolition of this prerogative, therefore, was rightly deemed by Mr. Jefferson a first measure in republicanizing the institutions, manners and customs of his country.
"To annul this privilege," says he, "and instead of an aristocracy of wealth, of more harm and danger than benefit to society, to make an opening for the aristocracy of virtue and talent which nature has wisely provided for the direction of the interests of society and scattered with equal hand through all its conditions, was deemed essential to a well-ordered republic. To effect it, no violence was necessary, no deprivation of natural right, but rather an enlargement of it by a repeal of the law. For this would authorize the present holder to divide the property among his children equally as his affections were divided; and would place them, by natural generation, on the level of their fellow citizens." (Autobiography, 1821. ME 1:54)
The repeal was resisted with desperation by the sturdy and inexorable barons of the Legislature. The opposition was headed by Edmund Pendleton, speaker of the House, a gentleman of great capacity, but zealously attached to ancient establishments. He had been under the protection of the lordly John Robinson, the acknowledged leader of the landed aristocracy for half a century, and the mantle of his patron had fallen upon himself. His personal influence was great and his powers as a debater were of a high order. For dexterity of address, fertility of resource, and parliamentary management, he was without a rival. With such a champion, some idea may be formed of the character and force of the opposition. But their resistance was unavailing. Finding they could not overthrow the general principle of the bill, they took their stand on an amendment which they proposed: instead of absolute abolition, to permit the tenant in tail to convey in fee simple if he chose it; and they were within a few votes of saving so much of the old law. But after a severe contest, the bill finally passed for entire abolition; and thus, to use the language of the author, was "broken up the hereditary and high-handed aristocracy which, by accumulating immense masses of property in single lines of family, had divided our country into two distinct orders of nobles and plebeians." The following short preamble introduces the act:
"Whereas, the perpetuation of property in certain families, by means of gifts made to them in fee taille, is contrary to good policy, tends to deceive fair traders, who give credit on the visible possession of such estates, discourages the holders thereof from taking care and improving the same, and sometimes does injury to the morals of youth, by rendering them independent of, and disobedient to their parents; and whereas the former method of docking such estates taille, by special act of Assembly, formed for every particular case, employed very much of the time of the legislature, and the same, as well as the method of defeating such estates when of small value, was burthensome to the public, and also to individuals:
"Be it therefore enacted, etc."
he next prominent heresy in the political system of Virginia which encountered the glance of the reformer was her religious establishment. This institution he considered one of the most preposterous and deleterious remnants of the repudiated monarchy; but his advances on this subject, in all its breadth and bearings, had left the rest of mankind, with few exceptions, far in the rear.
The church establishment of Virginia was of the Episcopal order, coeval with its first colonization, and in all respects a scion of the parent hierarchy. "The first settlers of this colony were Englishmen," writes Mr. Jefferson, "loyal subjects to their king and church, and the grant to Sir Walter Raleigh contained an express proviso that their laws 'should not be against the true Christian faith now professed in the Church of England.'" (Autobiography, 1821. ME 1:56) They emigrated from the bosom of the mother church at a point of time when it was flushed with complete victory over the religious of all other persuasions. Possessed as they became of the powers of making, administering, and executing the laws, they showed equal intolerance in this colony with their Presbyterian brethren who had emigrated to the northern governments. "As soon as the state of the colony admitted, it was divided into parishes, in each of which was established a minister of the Anglican church endowed with a fixed salary in tobacco, a glebe house and land, with the other necessary appendages. To meet these expenses, all the inhabitants of the parish were assessed, whether they were or were not members of the established church." The integrity of the institution was guarded by the severest penalties against schismatics. In addition to the common law provisions against heresy, making it a capital offense punishable by burning, their own statuary enactments were scarcely less flagitious. Several acts of the Virginia Assembly had made it penal in parents to refuse to have their children baptized; had prohibited the unlawful assembling of Quakers; had made it penal for any master of a vessel to bring a Quaker into the State; had ordered those already there and such as should come thereafter to be imprisoned till they should abjure the country; prescribed a milder punishment for the first and second return, but death for the third; had inhibited all persons from suffering their meetings in or near their houses, entertaining them individually, or disseminating books which supported their tenets. And so late as 1705, an act of Assembly was passed declaring, if any person brought up in the Christian religion denied the being of God or the Trinity, or asserted there were more Gods than one, or denied the Christian religion to be true, or the scriptures to be of divine authority, he was punishable on the first offense by incapacity to hold any office or employment, ecclesiastical, civil or military; on the second, by disability to sue, to take any gift or legacy, to be a guardian, executor or administrator, and by three years imprisonment without bail.
Such is an epitome of the religious slavery which existed at this time in Virginia; and if no executions had taken place, as in New England, it was not owing to the moderation of the church or spirit of the legislature, as may be inferred from the laws themselves, but to historical circumstances which have not been handed down to us. The convention which sat in May, '76, in their Declaration of Rights, had indeed proclaimed it to be a truth and a natural right that the exercise of religion should be free; "but when they proceeded," says Mr. Jefferson, "to form on that declaration the ordinance of government, instead of taking up every principle declared in the Bill of Rights and guarding it by legislative sanction, they passed over that which asserted our religious rights, leaving them as they found them." The whole catalogue of spiritual oppressions, therefore, was reserved for himself to wipe away; to effect which was an enterprise of a more desperate character than any he had ever undertaken. The excitement of the revolution was a powerful auxiliary to him, but the state of the country in general exhibited the strange phenomenon of a people devoting their lives and fortunes for the recovery of their civil freedom, and yet clinging to a mental tyranny tenfold more presumptuous and paralyzing. Other moral causes still more efficacious combined with the spirit of the revolution to assist him in the arduous labor of spiritual disenchantment. These causes are summarily stated by himself:
"In process of time, however, other sectarisms were introduced, chiefly of the Presbyterian family; and the established clergy, secure for life in their glebes and salaries, adding to these, generally, the emoluments of a classical school, found employment enough in their farms and schoolrooms for the rest of the week, and devoted Sunday only to the edification of their flock by service and a sermon at their parish church. Their other pastoral functions were little attended to. Against this inactivity, the zeal and industry of sectarian preachers had an open and undisputed field; and by the time of the revolution, a majority of the inhabitants had become dissenters from the established church, but were still obliged to pay contributions to support the pastors of the minority. This unrighteous compulsion to maintain teachers of what they deemed religious errors was grievously felt during the regal government and without a hope of relief. But the first republican legislature, which met in '76, was crowded with petitions to abolish this spiritual tyranny." (Autobiography, 1821. ME 1:57)
Encouraged by the rising spirit of determination among the dissenters and relieved from the complicated restraints which externally barred all improvement under the monarchy, he commenced his attack on the then dominant religion early in the session, to wit, on the 11th of October. This bold movement, supported by the incessant and well directed appeals of the petitioners, roused the privileged clergy from their protracted inertness. Counter memorials, accordingly, poured in from every quarter, soliciting a continuance of the ecclesiastical polity upon principles of justice, wisdom, and expediency. They represented that the repeal of the church establishment would be an ex post facto enactment, and a violation of the public faith; that the Episcopal clergy had entered upon their endowments with the plighted obligation of the government to continue them therein during life or good behavior as a compensation for their services; and that they held them by a tenure as sacred as that by which any man has secured to him his private property; that the Episcopalians did not mean to encroach on the religious rights of any sect of men, yet they conceived the existing institution, consecrated by the practice of so many years, as eminently conducive to the peace and happiness of the State; that much confusion and probably civil commotions would attend the proposed change; and finally, that an appeal should be made for the decision of so important a question to the sentiments and wishes of the people at large. The petitions, on the other hand, expatiated upon the theme of liberty and blended with unanswerable demonstrations of right and reason the expostulations of bereaved freemen.
The subject was referred to the committee of the whole house on the state of the country, with the multitude of appertaining memorials and remonstrances. "These," says Jefferson in 1821, "brought on the severest contests in which I have ever been engaged. Our great opponents were Mr. Pendleton and Robert Carter Nicholas -- honest men, but zealous churchmen." (ME 1:57) The majority of the legislature, unfortunately, were of the same stamp, which forced on Mr. Jefferson an alteration in the mode of attack. Finding he could not maintain the ground on which he set out, he varied his position from absolute to partial abolition; and after vehement contests in the committee almost daily from the 11th of October to the 5th of December, he prevailed so far only as to repeal the laws which rendered the maintenance of any religious opinions criminal, the forbearance of repairing to church, or the exercise of any mode of worship. By the same act also, he secured a provision exempting dissenters from contributions to the support of the established church and suspending until the next session only, levies on the members of the church for the salaries of their own incumbents. But his opponents inserted a declaratory saying that religious assemblies ought to be regulated, and that provision ought to be made for continuing the succession of the clergy and superintending their conduct. They also succeeded in incorporating an express reservation of the ultimate question, Whether a general assessment should not be established by law on every one to support the pastor of his choice, or whether all should be left to free and voluntary contributions?
This question, the last prop of the tottering hierarchy, reduced the struggle to one of pure principle. The particular object of the dissenters being secured, they deserted the volunteer champion of their cause and went over in a body to the advocates of a general assessment. This step showed them incapable of religious liberty upon an expansive scale, or broader than their own interests as schismatics. The defection of the dissenters, painful as it was, only stimulated his desire for total abolition, since it developed more palpably the evidence of its necessary. He remained unshaken at his post and brought on the reserved question at every session for three years afterwards, during which time he could only obtain a suspension of the levies from year to year, until the session of '79 when, by his unwearied exertions, the question was carried definitively against a general assessment, and the establishment of the Anglican church entirely overthrown.
Thus was the cause of religious liberty astonishingly advanced. But still the work was incomplete. Statutory oppressions were disannulled, but those which existed at the common law continued in force; nor were the advantages already gained secured by any positive legislative sanction. The proceedings hitherto upon the subject were of a belligerent character, and although crowned with success, were regarded by the mover in great part as an experiment upon public opinion, "indicative," as he expressed it, "of the general pulse of reformation." The barrier subsequently erected for perpetual security of the rights of which he procured the recognition, forms the conclusion of this impressive drama. We allude to his celebrated Religious Freedom Bill, universally regarded as one of the chief bulwarks of human rights. As it constitutes a part of his general code of revisal, the merits of this bill will be more particularly considered when we come to develop the features of that great and useful labor.
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© 1997 by Eyler Robert Coates, Sr.