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CHAPTER III

THE REFORM OF THE VIRGINIA CODE

The Gothic idea that we are to look backwards instead of forwards for the improvement of the human mind, and to recur to the annals of our ancestors for what is most perfect in government, in religion, and in learning, is worthy of those bigots in religion and government by whom it has been recommended, and whose purpose it would answer. (Jefferson to Joseph Priestley, January 27, 1800.)

“LIBERTY and union, now and forever, one and inseparable!” Since Daniel Webster pronounced the marriage banns between liberty and union, and Abraham Lincoln stopped the action for divorce, the tie has remained consecrated and inviolable in our American democracy. But Liberty was a jealous maiden, needing many years of wooing before she would consent to Union, and dwelling long even after her grudging consent was given on the fear of “losing her freedom.” It was liberty, not union, for which our fathers fought in the Revolution. Union was the necessary means, for unless the patriots of Massachusetts and Virginia, of Pennsylvania and Georgia, made common cause, they could not hope to win. But the union was only the sum of its parts, a federation, and the Congress a central board of direction, without any specified powers or sanctioned authority, until a few months before the

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British surrender at Yorktown. Even for eight years afterward it was without the fundamental sovereign rights of taxation and executive authority. There was no national government during the American Revolution and the critical period” which followed, but only a national committee convened by the governments of the States. There was no supreme national state, but only a consensus of the States. If Congress actually assumed great powers, raised and equipped armies, declared independence, borrowed money, and concluded treaties, it was only as the steward of the interests of the States and in some cases by their explicit mandate. The Congress of the Confederation exercised only powers of attorney.

Unless we realize these facts we shall misunderstand the spirit and misjudge the men of the early years of our history. “Citizenship,” “patriotism,” “allegiance," and the like terms, which inevitably mean for us American citizenship, patriotism, and allegiance, had a different signification before our national state was firmly founded, before we had a national domain, before our national courts administered a national law impartially throughout our land, before a powerful national executive was chosen by a nation-wide franchise to conduct the government, not of a majority of the States nor even of the sum of the States, but of a new, independent, and autonomous United States. In the early days there were citizens of New Hampshire, of New York, of Virginia, of South Carolina, attached by long tradition to their colonial institutions, and owing a larger but remote allegiance only to a King or Parliament across the ocean. Their "land" was not England, however, nor yet America, but the particular colony in which they lived. In his Notes on Virginia, published just at the close of the American Revolution, Jefferson constantly speaks of Virginia as “my country." When the breach with England came, the most immediate and urgent duty of patriots, next to vindicating their independence in arms, was to reshape the government of their new-fledged "States" to accord with the political principles which had been developing in the American mind since the publication in 1762 of James Otis's Vindication of the Conduct of the House of Representatives of the Province of Massachusetts Bay.

In no other State was the need of reform more crying than in Virginia New England, often aristocratic and intolerant enough in practice, had, nevertheless, the seeds of democratic institutions in its founding. “I can give you the receipt for making a New England in Virginia," said John Adams one day at dinner to a friend from the Old Dominion who was bewailing its conservatism—"town-meetings, training days, schools, and ministers.” The Middle States, with their cosmopolitan population, their commercial preoccupations, their religious variations, escaped the cramping mould of a social type-form. But Virginia was social England transplanted. The Old Dominion, “most faithful of the King's distant children,” as Charles II called it, clung tenaciously to its habits when its children came of age. Estates were held in "fee tail”: that is, not an acre or a slave could be alienated to pay the debt which might hang like a millstone about the neck of an incompetent or extravagant proprietor. The law of primogeniture devised the entire property to the eldest son, leaving his mother and sisters dependent on his bounty and condemning the younger brothers to be pensioners or adventurers. The landed aristocracy lacked only the titles of their English cousins to be a complete caste. Between them and the negroes were only the “poor whites," a miserable class pushed by the rich planters into the unfertile uplands and excluded by the slaves from the dignified diversity of labor. A solid middle class, industrious, inventive, educated, conscious of its freedom, sharing equitably in the soil, the bone and marrow of a community, was lacking.

Stupid and cruel laws stood on the statute-books of Virginia, laws the more cruel and stupid because the exercise of the royal veto in the colony had discouraged the efforts for reform. Jefferson speaks bitterly in his Memoir of the "negations (vetoes) of councils, governors, and kings,” to restrain us from doing right. Twenty-three acts against the slave

trade were passed by the Virginia House of Burgesses between the years 1699 and 1772, and every one of them was vetoed by the King or by his governor in the colony. There were laws against witchcraft, laws for the ducking of women and the infliction of the barbarous punishment of the lex talionis

-"an eye for an eye, a tooth for a tooth.” There were heresy laws which, if enforced, would have brought Thomas Jefferson to the stake. To deny the Trinity meant three years' imprisonment. A Unitarian or a freethinker was considered unfit to be the custodian of his own children. "I want to breathe again your free air," wrote young James Madison to a northern friend after he had returned to Virginia from Princeton College. He cried out against “the diabolical, hell-conceived principle of persecution” that “raged” among the clergy of his native State, and declared that the King would reduce all America to submission if the Church of England were established and endowed in all the colonies as it was in Virginia.

The reform of the political and social institutions of his “country,” in such glaring contradiction to the republican principles which he himself and a score of other able writers, like Otis, the Adamses, Dickinson, Hopkins, and Bland, had made the accepted doctrine of the American Revolution, ap. pealed to Jefferson with irresistible force. He threw himself into the work with unflagging zeal, seizing

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