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Part IV:
The Commonwealth of Virginia

Declaration of Rights

The two greatest documents of the Revolution came from the pens of Virginians George Mason and Thomas Jefferson. Political scientist Clinton Rossiter notes, "The declaration of rights in 1776 remain America's most "We hold these truths to be self-evident...." notable contribution to universal political thought. Through these eloquent statements the rights-of-man political theory became political reality."³³

As Richard Henry Lee rode north to Philadelphia with the Virginia resolution for independence, George Mason of Fairfax, sat down with his committee and drafted the Virginia Declaration of Rights. Presented to the Convention on May 27, 1776, the Declaration was adopted on June 12, 1776. It reads, in part:

A Declaration of Rights, made by the Representatives of the good People of Virginia, assembled in full and free Convention, which rights do pertain to them and their posterity as the basis and foundation of government.

  I. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

 II. That all power is vested in, and consequently derived from, the People; that magistrates are their trustees and servants, and at all times amenable to them.

III. That Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community;—of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration;—and that, whenever any Government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.³⁴

In 16 articles the Declaration goes on to: prohibit hereditary offices; separate the legislative, executive, and judicial branches; assure that elections shall be free; prevent suspending law or executing laws without consent of the representatives of the people; guarantee due process in criminal prosecutions; prevent excessive bail and cruel and unusual punishments; eliminate general warrants for search and seizure; provide jury trials in property disputes; assert "that the freedom of the press is one of the great bulwarks of liberty and can never be restrained but by despotic governments"; provide for a well-regulated militia and warn against standing armies in peacetime; declare that no government can exist within the state independent of the government of Virginia; and grant to all men equally "the free exercise of religion, according to the dictates of conscience." (While this article granted free expression of religion, it did not end the establishment of the former Church of England as the official state church in Virginia. Full separation of church and state did not occur until the General Assembly passed Jefferson's famous Statute for Religious Freedom in 1786.)

The most intriguing article is XV, which is not a declaration of a right as much as it is a reminder that citizens who do not exercise their rights soon lose them.

XV. That no free government, or the blessing of Liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue, and by a frequent recurrence to fundamental principles.

Nowhere is the break with England more clear than in the proclamation that "all men are by nature equally free and independent". No longer were Virginians claiming rights which were theirs as Englishmen; they now were claiming rights which were theirs as human beings. These were natural rights which belong to all persons everywhere and no one, either in the past or the future could alienate, eliminate, or diminish those rights.

A second vital observation is the Declaration's firm adherence to the doctrine of popular sovereignty—the power of the government is derived from the people and can be exercised only with their consent or the consent of their elected representatives.

A third observation, among many which can be made, is that for the first time a sovereign state prevented itself and its own legislature from infringing on the basic liberties of its peoples. The possible assault on popular rights by an elected legislature had been made all too vivid by parliament in the 1760's and 1770's.

Edmund Randolph said one aim of the Declaration was to erect "a perpetual standard". John Adams had warned "we all look up to Virginia for example". Neither Randolph nor Adams could have been disappointed. Mason's Declaration of Rights was utilized by Jefferson as he drafted the Declaration of Independence, written into the bills of rights of numerous other states, and finally in 1791 was incorporated into the Federal Constitution as the Bill of Rights.

Declaration of Independence

In Philadelphia, Lee introduced the Virginia independence resolution on June 7, 1776. On that day only seven colonies were prepared to vote "aye". Therefore, congress put off a full vote until July 1, hoping by that date for all states to have received instructions from home. In the meantime congress appointed John Adams, Benjamin Franklin, Roger Sherman of Connecticut, Robert R. Livingston of New York, and Thomas Jefferson to draft a declaration. For nearly two weeks Jefferson, with the advice of Adams and Franklin, wrote and rewrote the draft, seeking just the right phrase, the right concept. On June 28 the committee laid its draft before the chamber. On July 4 the Congress completed its revisions. The changes were few when one considers the normal way legislative bodies amend and rewrite the very best of prose. Still the changes were too many for the red-haired delegate from Albemarle County, Virginia, who possessed an ample store of pride in his own words. Jefferson thought his version had been manhandled; Lee went further and said it had been "mangled".

The preamble to the Declaration of Independence is timeless. There in clear and unmistakable language is a rationale for revolution, not just 1776, but all revolutions.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.—Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

The last thread which held the colonies to Britain was the king and to cut that thread Jefferson and the Congress charged him with all the acts of parliament and the ministries. As Dumas Malone remarks:

The charges in the Declaration were directed, not against the British people or the British Parliament, but against the King. There was a definite purpose in this. Jefferson, and the great body of the Patriots with him, had already repudiated the authority of Parliament.... Now … the onus must be put on George III himself. Such a personification of grievances was unwarranted on strict historical grounds. This was the language of political controversy, not that of dispassionate scholarship.³⁵

Parliament, in fact, is not mentioned at all. Jefferson would not even acknowledge its existence, referring to it instead as "others" who have joined with the king in these "repeated injuries and usurpations." But before we worry too much about the king and sympathize with those who believe "poor George" has suffered unnecessary abuse, let us remember that we now know the king, while neither vindictive nor a tyrant, was an adherent to the policies proposed by his ministers which brought disunion to the empire.

On July 4, 1776, by a vote of 12-0, with New York abstaining, the colonies voted independence. On July 8 the Declaration was read publicly. On July 15 New York voted "yes". And on August 2 most delegates signed the formal Declaration itself. (The last signer did not put his signature on it until 1781.)

Just as George Washington misjudged himself and history when he remarked, "Remember, Mr. Henry, what I now tell you: from the day I enter upon the command of the American armies, I date my fall, and the ruin of my reputation," so Jefferson thought little of his composition. He was much more interested in and concerned about the Virginia Constitution. At first he was not identified as the author of the Declaration, for the names of all those who signed were not revealed until January 1777. He was wrong, of course, as the judgment of time has confirmed. The Declaration is the greatest political statement written by an American. To the citizens of the United States it was, and has remained, the most popular and beloved of all their public documents.

The Virginia Constitution, June 29, 1776

One mark of the revolutionary generation's greatness is seen in this series of simultaneous events taking place in June 1776. One Virginian, George Washington, was assembling an army to defend the new nation; two Virginians, Richard Henry Lee and Thomas Jefferson, were leading the congress to independence; and a third group, George Mason and the Virginia Convention were constructing a new government for Virginia. Just as Virginia was the first colony to declare independence, she was also the first state to draft a new form of government.

The convention had charged Mason and his committee with writing "such a plan as will most likely maintain peace and order in this colony, and secure substantial and equal liberty to the people". Within two weeks Mason had completed his task. It was not, however, a work of haste, for Mason had contemplated for a long time the proper form of government. To Mason and most Virginians the constitution must: 1) give life to the liberties set forth in the Declaration of Rights; 2) prevent those tyrannies of government which had undermined the once ideal English constitution; and 3) preserve those elements which had been the strengths of the old colonial government. The Constitution of 1776 achieved these ends.

Virginia was made a commonwealth. As Robert Rutland tells us, "Mason's choice of the word 'commonwealth' was no happenstance. Mason knew passages of John Locke's Second Treatise on Government verbatim. None struck Mason more forcefully than Locke's notion that a commonwealth was a form of government wherein the legislature was supreme." There was a consensus within the convention that there should be a separation of powers between executive, legislative, and judicial functions, but no equality of powers. The legislative function was to be supreme.

The residual power in the Constitution of 1776 is vested in the people and exercised through the General Assembly. Within the General Assembly the House of Delegates was to be supreme. The Assembly had two houses: The House of Delegates, replacing the House of Burgesses, had two members from each county and one from each town; and the Senate, replacing the old royally-appointed council, had 24 members chosen from 24 districts throughout the state. A peculiarity of this constitution was the use of 12 electors, chosen by the voters in each district, to actually choose the senator from that district. All legislation originated in the House of Delegates, the Senate being allowed to amend all laws except appropriation bills, which it had to accept or reject completely.

Mindful of royal authority and disdainful of executive power, the constitution emasculated the power of the governor, leaving him a "mere phantom". Elected annually by the combined vote of the General Assembly for a maximum of three consecutive terms, the governor had no veto power and virtually no power of executive action. He could not act between legislative sessions without approval of an eight-man Council of State. This council was elected by the assembly "to assist in the administration of government". In truth, the council restrained the executive.

The virtual semi-autonomy of the county courts and the justices of the peace remained. A system of state courts was provided for, its judges also elected by the assembly. Property qualifications for voters and for office holders continued in force. No clergymen were permitted to hold state office.³⁶

The constitution, then retained what had worked well in the past—the General Assembly and the county court system; granted to the House of Delegates the written powers it had claimed as the colonial House of Burgesses; eliminated the royally elected council, but retained the idea of an upper house composed of men of property; and totally restrained the governor. Thus, if one definition of a commonwealth is a government in which the legislature is supreme, then Virginia in 1776 was certainly a commonwealth. This constitution became a model for many other state governments, although most states benefited from the unfortunate experiences of governors Henry (1776-1779) and Jefferson (1779-1781) and gave their executives greater administrative latitude.

Jefferson had hastened back from Philadelphia to try to influence the writing of the constitution. He arrived too late to have much effect beyond appending to the constitution a preamble paraphrasing the Declaration of Independence. But many of his ideas were too "democratical". He feared the constitution did not have the force of true law, for it had been written by a convention not elected for that purpose by the people. Nor had the people voted directly on the constitution. Jefferson was even more concerned about the remaining vestiges of feudalism, aristocracy, and privilege. He succeeded in eliminating primogeniture (the eldest child has greater inheritance rights than the younger children) and entails (a person could place restrictions on the use of his property in perpetuity). Both primogeniture and entail smacked of inequality and alienation of rights by one generation against the next. Although his Statute on Religious Freedom was not passed until 1786, each session after 1776 saw Jefferson successfully whittle down the privileges of the once-established Anglican Church. From 1776 until 1778 Jefferson, Wythe, and Pendleton labored on a revision of the state law code, but only a part of their code was adopted. A revised criminal code was not fully enacted until the 1790's. Jefferson made little headway on his plans for public education.

There is no evidence that Virginians were concerned that the convention had written a constitution without their direct approval. The Constitution of 1776 remained in effect until 1830. Virginians developed great pride concerning the work of this revolutionary convention. Here a group of the richest and best men in the colony had initiated revolution, articulated a philosophy for revolution, and established a frame of government which were to be widely imitated throughout the country and adopted in part in France.

Out of this transformation of the English constitution into a government for the Commonwealth of Virginia men like Jefferson, Henry, Mason, and even the more conservative Bland and Pendleton had produced a truly radical doctrine of popular sovereignty, an appeal to a higher law—the law of nature and Nature's God, the replacement of virtual representation with direct representation, and the substitution of a balance of interests within the Virginia society for the old English theory of a balanced government comprising crown, nobility, and commons in restraint of each other.

In the words of historian Bailyn, they had worked "a substantial alteration in the order of society as it was known" in 1775. They had unloosened a "contagion of liberty" which could not be restrained.³⁷ Ultimately Virginians and Americans came to believe the rhetoric of the Declaration of Rights and the Declaration of Independence when they read the words "all men are created equal" to mean "all persons". If it is something of an anomaly that the men who wrote these words were slaveholders, it is no anomaly that these words came to be accepted as "self-evident truths" when later generations applied these truths to the rights of man, regardless of race, creed, color, religion, or national origin. But that was a long way off. June-July 1776 was the beginning of a great experiment, not the finished product.

The British-Americans: The Virginia Loyalists

Jefferson was correct in stating that Virginians moved forward to war with greater unity and with fewer examples of Torism than any other colony. Robert Calhoon, historian of loyalism, notes Virginia Loyalists consisted "of a handful of Anglican clergymen, the members of a moribund Royal Council, and several hundred Scottish merchants, and were … not a very formidable coalition." This confirms the much older view of Isaac Harrell who characterized Virginia loyalists as small in number, not more than a few thousand, whose activities after the departure of Governor Dunmore were limited. Only in the Norfolk area, the Hobbs Hole region of Middlesex County, in Accomac County on the Eastern Shore, and in the isolated frontier area along the Monongahela River, claimed jointly by Pennsylvania and Virginia, were there enough loyalists to even suggest a majority of the population. "Of the 2,500 claims filed with British government for loyalist property lost during the Revolution, only 140 were from Virginia." Most of these 140 claims were made by British natives living in Virginia at the outbreak of the war. Only 13 were Virginians.

Except for the Dunmore raids in 1775-1776 and an abortive plot in 1776 by Dr. John Connolly in the Fort Pitt region there were no loyalist military operations in Virginia. Several hundred loyalists joined the royal army, a small number in comparison to most colonies. Most loyalists went to London or Glasgow. Except for William Byrd III and Attorney-General John Randolph, most native Virginia loyalists, including Richard Corbin, John Grymes, and Ralph Wormeley stayed quietly on their plantations.³⁸ Virginia's only nobleman, aging recluse, Thomas, Sixth Lord Fairfax, owner of the Northern Neck, 9,000 square miles of land, remained untouched at his hunting lodge in Frederick County.

In the early years there was a general appreciation of the difficulty some Virginians had experienced in breaking with England and swearing allegiance to a new nation. This switch was especially difficult for members of the governor's council and the Anglican clergy who had taken personal oaths of allegiance to the king, not a casual act in the 18th Century. Most of these men and women had been respected leaders in pre-Revolutionary Virginia, had many friends, brothers, and sons in the patriot camp, and took no direct action to support the British. Generally they were well treated.

As the war moved along, however, and the colonists suffered enormous losses in the winters of 1777 and 1778, sympathy decreased and demands for public declaration of allegiance to the patriot cause grew. Laws were passed providing for heavy taxation and then confiscation of loyalist properties. The fortunes of the war can almost be read in the evolution of loyalist laws. After the battle of Great Bridge (1775) the convention allowed those who had borne arms against Virginia to take an oath of allegiance to the Committee of Safety. Most Norfolk area loyalists did. But when Dunmore persisted in raiding Virginia that spring, the convention, in May 1776, changed the law and declared those who aided the "enemy" subject to imprisonment and their property to seizure. In December 1776 the new General Assembly voted that those who joined the enemy or gave aid and comfort were to be arrested for treason. If guilty, they would be executed. Those guilty of adherence to the authority of the king (as opposed to those who refused to support the new government) were subject to heavy fines and imprisonment.

A major turning point occurred in 1777 when general patriot outcries against those not supporting the Revolutionary cause forced the assembly to pass a test oath. Washington and Jefferson were especially vocal on this point. Every male over 16 was required to renounce his allegiance to the king and to subscribe to a new oath of allegiance to Virginia. In 1778 those who refused to take the oath were subjected to double taxation; in 1779 the tax was tripled. In 1779 legal procedures for the sale of sequestered and confiscated property were established and sales begun, although these sales never brought the income expected to the financially hard pressed state.

A similar progression from toleration to harshness faced the merchants who had stayed in the colonies as well as those who had fled. The latter had much of their property confiscated and their ships seized. Those who stayed found there was no neutrality. The key issue here was debt payment. The assembly declared that the new Virginia paper money circulated was legal tender and must be accepted for both new and pre-war debts. Many Virginians took advantage of this opportunity to pay their debts in the inflated money, a move which caused many problems after the war when attempts were made to straighten out personal British accounts. There was no sympathy for those who protested the inequity of this action. Revolutions and civil wars seldom bring equity. The remarkable thing is that in Virginia the Revolution progressed with so little internal strife.³⁹

The War at Home, 1776-1780

From the time Dunmore left in July 1776, until the British moved into Virginia again in 1779, Virginians fought the war for independence on the soils of the other colonies. Their main contributions were providing the men and material which all wars demand. When one considers the natural reluctance of colonials to serve outside their own boundaries, Virginians' record of men and supplies were good.

The demands on the Virginia economy were great. With much of the natural granary in Pennsylvania, New Jersey, and Long Island occupied by British forces and the middle state ports blockaded, pleas from Washington for Virginia meat and food supplies were constant. Munitions works at Westham (Richmond), Fredericksburg, and Fort Chiswell and naval shipyards at Gosport, South Quay, and Chickahominy River operated at full capacity. A major munitions magazine opened at Point of Fork on the James River in Fluvanna County, and small iron furnaces appeared throughout the Piedmont and in the Valley areas. In 1779 Virginia exports of food and grain outside the United States were halted and redirected to the needs of Congress. Everywhere Virginians began to spin and weave their own cloth. Simpler life styles became the order of the war.

The plainer way of life was not just a patriotic morale-builder. It was a necessity. The natural trade routes between the Chesapeake and Britain were closed and the tobacco trade was ruined. To finance the war the assembly taxed nearly everything which could be taxed. Many taxes were those which the Virginians had rejected when imposed by parliament, including legal papers and glass windows. The difference was the necessity or war and the source of the tax laws—the people's own elected representatives.

Taxes, alone, however have never financed a major war. As in the French and Indian War, Virginia issued paper money and floated state loans. Between 1776-1780 the state debt reached £26,000,000 and in the following two years nearly doubled. By 1779 loans and taxes were not enough and the assembly levied taxes on commodities as well as currency. Taxpayers had to make payments in grain, hemp, or tobacco rather than inflated paper money alone. Inflation set in. By 1780 coffee, when you could get it, sold for $20 per pound, shoes were $60 per pair, and better grades of cloth were bringing $200 a yard. The exchange rate of Virginia money to hard coins (specie) was 10-1 in 1778, 60-1 in early 1780, and then spiraled upwards to 150-1 in April 1780, 350-1 in July, and was going out of sight as Cornwallis' army ravaged the state. It never reached the ratio of 1,000-1 as did the Continental Congress currency, but the phrase "not worth a Continental" might equally have applied to Virginia money. Few of those who served Virginia and the new nation, whether as officers, footsoldiers, governors, judges, or clerks, did so without suffering substantial financial losses. In many cases they were never reimbursed even for actual expenses.⁴⁰ Unfortunately there were many who reaped profits by exploiting the situation.

There also were thousands who moved across the mountains to new lands in the Valley, southwestern Virginia, and Kentucky. In fact, Virginia had to head off an attempt by North Carolinians, headed by Richard Henderson, to detach Kentucky from Virginia. The state had to watch attempts by other states to claim Virginia lands in the Ohio country. To forestall these attempts Virginia took two steps. In 1776 the Assembly divided Fincastle County into three counties—Kentucky, Montgomery, and Washington and established local governments there; and she agreed to ratify the new Articles of Confederation only upon the condition that all other states agree to give up their claims to the Ohio country and that all new states created from those territories have the same rights and privileges as the original states. In so doing, Virginians, under the leadership of Jefferson, formulated a colonial policy for the western lands which assured equality for the new states, a most important guarantee that there would be no superior and inferior states in the new United States. All states would be equal.

It should be remembered that this was never a total war. Independence simply demanded that Washington, the Continental Congress, and the states keep an army in the field and a fleet on the seas until the British accepted the fact that they could not defeat the Americans or until they decided victory was not worth the cost. Whenever the call came, Virginians poured forth in sufficient numbers and with sufficient supplies in the crucial days of 1777-1778 and 1780-1781 to prevent defeat. And in 1781 they were there in enough numbers to insure victory at Yorktown.