The Road to Independence: Virginia 1763-1783

How could a planter elite become the fount of republicanism.4 First, the common bond of land and tobacco farming gave the large and small planters similar economic interests and a homogeneous society, at least east of the Blue Ridge Mountains. Second, the less-affluent farmer naturally elected his more prosperous neighbors to the House of Burgesses. The poorly run plantation was no recommendation for a public office whose main responsibility was promoting agricultural prosperity. Third, the hard-working small farmers lacked the time and money to serve in public office. Virginia had a long tradition of voluntary service in local government and only a small per diem allowance for attending the House of Burgesses. Finally, social mobility was fairly fluid in a fast-growing society, and the standard of living among the lower classes had improved visibly in pre-Revolutionary Virginia. The independent farmers and small slaveholders saw no reason to oust or destroy the power of the larger planters. They wanted to emulate them and they fully expected to be able to do so.

The liberal humanism of the planter gentry did much to assure the people that they had little to fear from their "betters". The gentry served because they believed in noblesse oblige—with power and privilege went responsibility. Honor, duty, and devotion to public and class interest called them to office, and they took that call seriously. They alone had the time, the financial resources, and the education necessary for public office. As social leaders they were expected to set an example in manners and public morals, to uphold the church, to be generous with benevolences, to serve with enlightened self-interest, and to be paragons of duty and dignity. With a certain amount of condescension and considerable truth, they thought colonial Virginia would be ill-served if they refused to lead and government was run by those who were less qualified to hold office. They set a standard which has remained the benchmark of Virginia political ethics.

Though they remembered their own interests, the burgesses believed they were bound to respect and protect those of others. This was a fundamental part of Virginia public ethics and was one reason for the absence of extensive political corruption. They held that sovereignty was vested in the people, who delegated certain powers to government. This they believed long before the Revolution. As early as 1736 Sir John Randolph reminded the burgesses:

We must consider ourselves chosen by all the People; sent hither to represent them, to give their Consent in the weightiest of their Concerns; and to bind them by Laws which may advance their Common Good. Herein they trust you with all that they have, place the greatest Confidence in your Wisdoms and Discretions, and testify the highest Opinion of your virtue.5

When Randolph made these remarks, he was telling the burgesses what they already knew and at a time when there were no pressing public issues. It was this abiding interrelationship between electorate and representatives which was the strength of the Virginia political system. The gentry extolled republicanism not only because it seemed the right and just attitude but also because it worked.

The small farmers and slaveholders acted as a restraint upon any tendency toward oligarchy which the gentry might have entertained. The small farmers were in the majority and they had the right to vote. The percentage of white males who voted in the 18th Century elections was quite high. True, the colonial voters elected only the burgesses, but that single choice was an important guarantee of their rights, since the House of Burgesses was the strongest political body in Virginia. Thomas Jefferson once remarked that the election process itself tended to eliminate class conflicts and extremism: the planter aristocrat with no concern for the small farmer was not apt to be elected, and the man who demagogically courted the popular vote was ostracized by the gentry. Therefore, the House of Burgesses became, at the same time, the center of planter rule and of popular government.6

The constitutional philosophy of the House of Burgesses proclaimed in response to the Grenville revenue program in 1764 was not new. When Patrick Henry electrified the burgesses with his Stamp Act Resolves in May 1765, he was not setting forth a new concept of government, he was reaffirming, in a most dramatic form, constitutional positions the burgesses themselves well understood. The burgesses had developed their constitutional positions during the 1750's in response to a series of minor, isolated events—royal disallowance, the Pistole Fee Controversy, and the Two-Penny Act.

After trying for years to codify and reform laws long in use, the General Assembly in 1748 completed a general revision of the laws. Included in these revisions were several laws already in force and approved by the crown. The assembly did not include a suspending clause with these acts, (holding up their implementation until the crown had an opportunity to approve them). While a suspending clause was supposed to be attached, the assembly had not done so regularly for years and the governors had not challenged them, nor had the crown complained. In 1752, however, the crown disallowed half-a-dozen laws, claiming the assembly had intruded upon the king's rights and ignored the governor's instructions. Angered, the assembly protested this "new" behavior by the crown and asserted they could not remember when the king had vetoed laws which were of no consequence to the crown, nor contrary to parliamentary law, but which were of importance to Virginia. It was the beginning of a long struggle.

In 1752 there also occurred a second and more decisive dispute—the Pistole Fee Controversy. One of the frequently overlooked events in Virginia, this debate between the royal governor and the House of Burgesses brought forth the classic constitutional defense by the house of its right, and its right alone, to tax Virginians. The burgesses' powers, as proclaimed by Richard Bland, became the fundamental argument by Virginians against royal encroachment upon what they believed were their rights.

Shortly after his arrival in Virginia Governor Robert Dinwiddie announced his intention to charge one pistole (a Spanish coin worth about $3.50) for applying the governor's seal to all land grants. The council, believing this was a routine fee for a service rendered, concurred. The storm of protest which followed amazed Dinwiddie. The burgesses accused Dinwiddie of usurping a right not his in order to line his pockets. This was not a fee, it was a tax, and only the burgesses could initiate a tax on Virginians. Dinwiddie denied that the fee was solely for his personal remuneration. Instead, he maintained his aim was to return to the tax rolls millions of acres of land withheld by Virginians in order to prevent collection of the annual quit-rent on the land which every Virginia landowner paid the crown. In the heated debates which followed, both parties built their cases around the rights and privileges each claimed was its own. The ultimate outcome, which resulted in a compromise by the crown, satisfactory to both Dinwiddie and the burgesses, is not as important as the constitutional argument put forth by the burgesses.

The house resolutions included ringing phrases which would become familiar in the 1760's:

The Rights of the Subject are so secured by Law, that they cannot be deprived of the least Part of their Property, but by their own Consent; Upon this excellent Principle is our Constitution founded … That the said Demand is illegal and arbitrary, contrary to the Charters of this Colony, to his Majesty's and his Royal Predecessor's Instructions to the several Governors, and the Express Order of his Majesty King William of Glorious Memory … That whoever shall hereafter pay a Pistole … shall be deemed a betrayer of the Rights and Privileges of the People.7

The author of these resolves was Richard Bland, a tough-minded burgess from Prince George County, descendant of one of the colony's oldest families. One of the earliest graduates of the College of William and Mary to achieve a major position in the burgesses, he was one of the most widely read. He held four beliefs common to the revolutionary generations, beliefs he translated into major works during the Pistole Fee Controversy, the Parsons' Cause, the Stamp Act, and the later revenue crises:

the eternal validity of the natural-law doctrines most cogently stated by John Locke;

the superiority over all other forms of government of the English Constitution, of which an uncorrupted model or extension was the peculiar property of the Virginians;

the like superiority of those unique rights and liberties which were the heritage of the free-born Englishman; and

the conviction that the good state rests on the devotion of men of virtue, wisdom, integrity, and justice.8

In addition to the house resolutions, Bland wrote a closely reasoned essay attacking the Pistole Fee, A Modest and True State of the Case (1753). Only a portion survives and is known as A Fragment Against the Pistole Fee. His underlying principle, one which the British ignored and Virginians never forget, is cogently set forth.

The Rights of the Subjects are so secured by Law that they cannot be deprived of the least part of their property without their own consent. Upon this Principle of Law, the Liberty and Property of every Person who has the felicity to live under a British Government is founded. The question then ought not to be the smallness of the demand but the Lawfulness of it. For if it is against Law, the same Power which imposes one Pistole may impose a Hundred …

LIBERTY & PROPERTY are like those precious Vessels whose soundness is destroyed by the least flaw and whose use is lost by the smallest hole.

Virginians never deviated from this view.

In 1818 John Adams, when asked what was the Revolution, replied, "the Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people … This radical change in the principles, sentiments, and affections of the people, was the real American Revolution." In Virginia, the Revolution began in the minds and hearts of the House of Burgesses with the Pistole Fee. Its author was Richard Bland.

The third event was the Parsons' Cause. This event reached the people, and in it the people found a spokesman—Patrick Henry. The Parsons' Cause was an outgrowth of the Two-Penny Acts. Nearly all Virginia salaries and most taxes were paid in tobacco, rather than specie (hard money). Many officials, including the clergy, had their salaries set by acts of the assembly at a specified number of pounds of tobacco per year. In the case of the clergy this was a minimum of 16,000 lbs. per year. In the 1750's a series of droughts and other natural disasters brought crop shortages in some areas, driving tobacco prices well beyond normal levels. In 1753 and again in 1755 the assembly allowed taxpayers to pay taxes in either tobacco or specie at the rate of two pennies per pound of tobacco owed. On one hand this seemed eminently fair. The crop shortages worked a double penalty on the planter—he had little tobacco because of the weather, but he was forced to pay his taxes in valuable tobacco he did not have. On the other hand, the clergy and others protested they received no relief when tobacco was in oversupply and the price was low. More importantly, they had a contract which had been enacted into law and approved by the king. No assembly could repeal a law approved by the king without his approval. In 1753 and 1755 the issue faded away.

Then in 1758 the assembly passed another Two-Penny Act, applying throughout the colony and to all officials and even to private debts. Governor Francis Fauquier, although knowing that he could not put such a law into effect until the king had given his approval, decided he would do the politically expedient thing and signed the bill.

Fauquier reckoned without the tenacity of the clergy led by the Rev. John Camm, a William and Mary college professor and parish pastor. Camm, whom Fauquier called "a Man of Abilities but a Turbulent Man who Delights to live in a Flame", later became President of the college, rector of Bruton Parish Church, and a member of the council.

In 1759 he was determined to receive what he believed was his guaranteed salary. Camm believed the law unconstitutional on two grounds: the assembly had passed a law repealing one already approved by the king, and Fauquier had permitted the law to go into effect without the suspending clause period taking place. At the behest of many Anglican clergy, Camm went to England. Presenting the parsons' case to the Bishop of London, who in turn forwarded the case to the Privy Council, Camm succeeded. The king declared the law unconstitutional.

Virginians were outraged. Unlike the Pistole Fee, which touched most directly the larger planters and the burgesses, the Parsons' Cause enflamed the entire populace. Camm and a number of clergymen sued in county courts for back salary. They received little satisfaction. Several county courts went so far as to declare the Two-Penny Act legal despite the king's disallowance.

Hanover County Court took a different tack. There the Rev. James Maury, Jefferson's field school teacher and hard-pressed father of 11 children, sued the vestry of Fredericksville Parish for his salary. The county court upheld his right to sue for claims and called for a jury trial to set the damages. Ironically, one of the clergymen who would benefit from a favorable verdict for Maury was the Rev. Patrick Henry. Presiding over the county court on December 1, 1763, was his brother, John Henry. Defending the parish vestry was his nephew and namesake, and the son of the justice, Patrick Henry. Hanover County was a center of Presbyterianism and in the jury box undoubtedly sat men who already had a dislike for Anglican clergymen whose salaries they were compelled to pay but whose churches they did not attend.

Young Patrick Henry, in his first prominent trial, launched immediately into a scathing attack on the established clergy, calling them "rapacious harpies", men who would "snatch from the hearth of their honest parishioners his last hoe-cake, from the widow and her orphan children their last milch cow; the last bed, nay, the last blanket from the lyin-in woman". Having stunned his audience into silence, Henry turned his invective upon the king. Although the constitutionality of the law was not an issue, because the county court had already decided it was constitutional, Henry proceeded to excoriate the king himself for violating the English constitution. His biographer, Robert Meade, notes:

Henry insisted on the relationship and reciprocal duties of the King and his subjects. Advancing the doctrine of John Locke as popularized by Richard Bland and other colonial leaders, he contended that government is a conditional compact, composed of mutually dependent agreements 'of which the violation by one party discharged the other'. He bravely argued that the disregard of the pressing wants of the colony was 'an instance of royal misrule', which had thus far dissolved the political compact, and left the people at liberty to consult their own safety.9

The jury retired, and then returned with its verdict—one penny damages for Parson Maury. Henry had lost the legal case, he had won the battle for their minds and hearts.

Out of the Parsons' Cause in 1763 came four important developments: the Anglican clergy suffered an irreparable setback and loss of status; the House of Burgesses now closely scrutinized the instructions from king to governor; the suspending clause was seen as a direct challenge to colonial legislative rights; and Patrick Henry burst forth as the popular spokesman for Virginia rights, winning a seat in the 1765 election to the House of Burgesses. In 1763 few people were willing to accept his premise that the king had been guilty of "royal misrule". In a dozen years they would.

Thus, by 1763 the fundamental political principles which would bring Virginia to independence already had been proclaimed. They were not developed in response to British actions, but Virginia experiences. They awaited only the specific challenges before they would be transformed into inalienable rights. Within a few months those challenges tumbled forth from Britain.