by Lynne Cheney
Madison and Randolph took note as Patrick Henry rose to speak. Henry was neither handsome nor graceful and from his childhood had lacked discipline, preferring to run wild in the Virginia forests and play his fiddle rather than attend to schoolwork. But he had passion, and after failing at farming and shopkeeping, he discovered a gift for inspiring others that had made him, next to George Washington, the most popular man in Virginia. He had enemies, to be sure, people who thought he was lazy and crude, but he won over the crowds with his oratory. “Compared with any of his more refined contemporaries and rivals, he by his imagination … painted to the soul [and] eclipsed the sparklings of art,” observed Randolph. Madison, too, “thrilled with the ecstasies of Henry’s eloquence and extolled his skill in commanding the audience,” but he also observed privately that Henry’s reasoning was sometimes faulty.4
Henry had earlier been among the most forward leaning on the matter of separating from Great Britain, and Pendleton one of the most cautious, but as the moment of decision neared, their positions reversed. Henry, for all his passion, thought independence a decision to be delayed until it could be taken by all the colonies at once in the Continental Congress, while Pendleton proposed that the Virginia Convention immediately declare union with Great Britain at an end. Pendleton crafted a compromise that fulfilled Henry’s wish with a resolution “that the delegates appointed to represent this colony in the general congress be instructed to propose to that respectable body to declare the United Colonies free and independent states, absolved from all allegiance to or dependence upon the crown or parliament of Great Britain.” An accompanying resolution accomplished what Pendleton wanted by setting Virginia on a new course immediately. A committee would “be appointed to prepare a declaration of rights and such a plan of government as will be most likely to maintain peace and order in this colony and secure substantial and equal liberty to the people.”5
Now Henry became “a pillar of fire,” Randolph reported. He threw the full force of his oratory behind the resolutions, and the delegates voted unanimously in favor of both. Remembering the eloquent case that Common Sense had made for American independence, Randolph concluded that “the principles of Paine’s pamphlet now stalked in triumph under the sanction of the most extensive, richest, and most commanding colony in America.”6
The crowd outside the convention thrilled to the new era by pulling down the British flag from atop the capitol and hoisting the red-striped Grand Union flag that George Washington’s army was using. As Thomas Nelson, a delegate to both the Virginia Convention and the Continental Congress, set out for Philadelphia with the resolution recommending independence, Williamsburg prepared for celebration. The next day in Waller’s Grove, the resolutions passed by the convention were read to the army. Troops paraded and partook of refreshment. Toasts were offered, each followed by cannon salute and the cheers of the crowd. That night, as the Virginia Gazette described it, there were “illuminations and other demonstrations of joy.”7
Several days after the vote, another of Virginia’s great men arrived at the convention, George Mason of Gunston Hall, one of the wealthiest planters in the colony. Swarthy, with eyes so dark they looked black, he had been delayed by “a smart fit of the gout,” as he put it. This painful ailment plagued him much of his life and might have contributed to his sometimes acerbic tongue, but he was also a man who carried a heavy weight of grief. His beloved wife, Ann, mother of his many offspring, had died in 1773 after bearing twins, who also died. Mason was left with nine children, to whom he was devoted. Pressed to serve in the Continental Congress in 1775, he had refused on account of his children, explaining with great emotion that such service would not be compatible with their needs.8
Although Mason had little formal schooling, he was a voracious reader and had acquired a vast knowledge of the letter and philosophy of the law. He was a natural appointment to the committee charged with creating a declaration of rights and a constitution for Virginia. Named its thirty-first member, Mason had no illusions about how it would work. He wrote to Richard Henry Lee, one of Virginia’s delegates to the Continental Congress and a man whom Mason desperately wanted to have join him in Williamsburg: “The committee appointed to prepare a plan is, according to custom, overcharged with useless members… . We shall in all probability have a thousand ridiculous and impracticable proposals and, of course, a plan formed of heterogeneous, jarring, and unintelligible ingredients. This can be prevented only by a few men of integrity and abilities … undertaking this business and defending it ably through every stage of opposition.”9
Mason, who immediately took charge of the committee, might well have regarded James Madison as part of its deadwood. It would have been hard to expect much from one so young and inexperienced, but when Mason’s draft of a declaration of rights emerged, Madison had a key suggestion. The section on religious freedom declared that “religion or the duty which we owe to our Creator and the manner of discharging it can be directed only by reason and conviction, not by force or violence; and therefore … all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate.” These sentiments represented Enlightenment thought, particularly as drawn from John Locke’s A Letter Concerning Toleration.10 After centuries in which magistrates had seen it as their duty to burn, behead, drown, and hang people of other religions, Locke’s thinking had been a breakthrough, but eighty years and more had passed since his letter, and James Madison thought it was time to push further. Why should religious freedom be regarded as something that the state should tolerate? He had spent much of his young life thinking about the consequences of forcing a person to profess belief he knows is in error and had concluded that to imply that the state had any authority in such a matter was wrong.
Madison, well aware of his junior status, worked through others, including Patrick Henry and Edmund Pendleton, to bring his amendment before the delegates, and he managed to do so with tact sufficient to leave George Mason unperturbed. In the end Madison succeeded in replacing the words “all men should enjoy the fullest toleration in the exercise of religion” with “all men are equally entitled to the free exercise of religion.”11 It was a simple alteration that accomplished a mighty change: legal recognition that freedom of conscience, like life, liberty, and the pursuit of happiness, is a natural right. It was also the first example of the double nature of Madison’s genius. He was capable not only of deeply creative thinking but of turning his thoughts into reality.
Madison had studied constitutions, but he took little active part when the convention moved on to create one for governing Virginia, as the Continental Congress, meeting in Philadelphia, had called on states to do, but he learned much as an observer, including a great deal about the temperament of a man he had not yet met and who was not even at the convention. Thirty-three-year-old Thomas Jefferson was the most junior member of the Virginia delegation to the Continental Congress in Philadelphia. Although not much of an orator, he had already proved himself a gifted writer with a pamphlet, A Summary View of the Rights of British America, in which he declared that Parliament had no authority over the American colonies and that King George III had acted illegally when he “sent among us large bodies of armed forces.”12 Jefferson had written A Summary View for the Virginia Convention of 1774, which he had been unable to attend, and might have learned from this experience how comfortable it was to give instruction from a distance. He did not like personal confrontation and could avoid it by opining without being present.
From Philadelphia, Jefferson sent word to convention delegates in Williamsburg that they had no authority to write a constitution for Virginia. Such a task was not within the purview of an ordinary legislative body and should be put off, he wrote to Edmund Randolph, “until the people should elect deputies for that special purpose.” Randolph carried Jefferson’s message to other members of the convention, Madison no doubt among them, and probably encountered
many a dismayed reaction. As Randolph put it, asking delegates “to postpone formation of a constitution until a commission of greater latitude and one more specific should be given by the people was a task too hardy.”13
But Jefferson wasn’t through. As the convention neared the end of its work on a Virginia constitution, he sent its members another missive—a draft of a Virginia constitution that he had composed, one full of ideas sure to lead to heated debate, such as ending the importation of slaves and allowing women to inherit equally with their brothers. One imagines Edmund Pendleton privately throwing up his hands, but, ever the gentleman in public, he wrote to Jefferson explaining that because the constitution just agreed to in the committee of the whole “had been so long in hand, so disputed inch by inch, and the subject of so much altercation and debate,” delegates were reluctant to invite more contention. Moreover, they were worn out “and could not, from mere lassitude,” be “induced to open the instrument again.” The delegates did, however, adopt the preamble that Jefferson had written for his draft constitution. Since he was dissatisfied with the document that the delegates produced, Jefferson was less than grateful for their adoption of his words. He described the final result as having his preamble “tacked to the work of George Mason.”14 Meanwhile, he found his own use for the preamble, folding it into a writing assignment he had acquired in Philadelphia. With a few alterations, the preamble became part of the Declaration of Independence.
Even before he met him, Madison was learning how maddening Jefferson could be—and how brilliant. In trying to establish popular self-government, Americans were attempting something new under the sun, which required thinking anew, and even though Madison voted in favor of the Virginia constitution that Jefferson thought flawed, within a decade he was arguing Jefferson’s point: that the convention wasn’t the proper body for creating fundamental law. Elected to run the war and govern the colony, it lacked the status needed to establish a framework for governing. Without what Madison called “due power from people,” its actions were legislative, not fundamental, and therefore alterable by the next governing authority.15
Jefferson had proposed that Virginia’s constitution be ratified by the people “assembled in their respective counties.” This suggestion was also ignored, but Madison saw its inherent correctness. This was a further way to distinguish a fundamental document from a legislative act and thereby shelter it from constant change. In later years, when Madison drafted a constitution for the nation, he would provide for “an assembly or assemblies of representatives … expressly chosen by the people, to consider and decide thereon.”16
On June 29, 1776, delegates in Williamsburg adopted the constitution over which they had long labored, and as if to prove the point that they were a legislative body rather than an assembly for creating paramount law, they rolled themselves over into the lower house of Virginia’s legislative branch, scheduled to meet in the fall. The constitution also created a governorship, one weak enough so that there was no danger of the incumbent disregarding the legislature, as royal governors had sometimes done, and the delegates elected Patrick Henry to the post.
As the convention in Williamsburg neared adjournment, members of the Continental Congress in Philadelphia approved the proposal that the Virginia Convention had instructed its representatives to offer. On July 2, 1776, they affirmed “that these United Colonies are, and of right ought to be, free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”
On July 4, the Continental Congress approved the Declaration of Independence, giving universal justification to America’s course in Jefferson’s soaring prose: “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.”
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MADISON HAD READ enough history to know that he was at the center of epoch-shaping events, and he had reason to be optimistic about the outcome. While he knew from listening to Edmund Randolph of the many difficulties that General Washington and his army faced, he likely balanced these in his mind against the long string of punishing blows that troops engaged in the American cause had so far delivered: The militiamen of Massachusetts had killed and wounded hundreds of the redcoats who had tried to seize arms at Concord; Ethan Allen and the Green Mountain Boys had captured Fort Ticonderoga; the defenders of Breed’s Hill had inflicted punishing casualties on the British. Virginia troops had dealt a devastating blow to Lord Dunmore at the Battle of Great Bridge, near Norfolk, and General George Washington and his army had forced the British from Boston.
Within months, however, the news turned ominous. The British had landed tens of thousands of troops on Long Island and in late August routed the American army, forcing Washington to evacuate across the East River to Manhattan. The British followed, and Washington retreated north to Harlem Heights, abandoning New York City. In October, as Madison traveled the route from Orange County to Williamsburg to serve in the newly formed House of Delegates, Virginians learned from the Virginia Gazette that much of New York had burned.17
But even the deep concerns of war did not bring a cessation of politics, and Madison found the assembly caught up in a controversy that he had helped create. Pursuing the religious amendment to the Virginia Declaration of Rights to its logical conclusion, petitioners flooded the House of Delegates with calls for ending state support of the Anglican Church. One group, quoting the amendment for which Madison had been responsible, demanded in the pages of the Virginia Gazette “that all religious denominations within this dominion be forthwith put in the full possession of equal liberty, without preference or preeminence, which, while it may favor one, can hurt another, and that no religious sect whatever be established in this commonwealth.” A group from Prince Edward County wrote that they viewed the religious amendment to the Declaration of Rights “as the rising sun of religious liberty to relieve them from a long night of ecclesiastical bondage” and urged that “without delay, all church establishments might be pulled down and every tax upon conscience and private judgment abolished.” The fact that one of Madison’s friends from Princeton, Samuel Stanhope Smith, was a Presbyterian leader in Prince Edward County and that Madison had been in recent communication with him suggests that Madison might not have been entirely surprised at the outpouring of response to the amendment he had helped create.18
There were zealous Anglicans in the assembly, but delegates such as Madison who wanted to end state sponsorship of the church had gained a powerful leader for their cause. Thomas Jefferson had retired from his seat in the Continental Congress in the late summer of 1776 in order to serve in the Virginia legislature, his aim being to reform “many very vicious points” of legislation that had grown up under British rule, among them the Anglican dominance that he called “spiritual tyranny.” Madison and Jefferson, whose Piedmont homes were only thirty miles apart, had not met before, and because of what Madison described as “the disparities between us,” they would not yet become fast friends. Eight years older than Madison and a man of national reputation, Jefferson was not a newcomer, expected to watch and learn, but a seasoned politician. He was a force in committee meetings, waging what he called “desperate contests” against the established church. Edmund Pendleton was a particularly adept foe, “the ablest man in debate I have ever met,” Jefferson wrote, describing him as “never vanquished”: “You never knew when you were clear of him but were harassed by his perseverance until the patience was worn down of all who had less of it than himself.”19 While Jefferson and his allies managed to do away with laws punishing
heresy and requiring church attendance, permanently ending state support for religion was, for the moment, beyond their reach. But Jefferson and Madison, no less than Pendleton, knew the meaning of perseverance, and year after year, as friendship between them grew, they held on to this cause, supporting each other, spelling each other, and eventually succeeding.
As the House of Delegates neared adjournment, news of the war caused alarm akin to panic. The British had driven George Washington and his ragtag army out of New York and pursued them across New Jersey. According to the Virginia Gazette, thousands of British troops had followed the Americans into Pennsylvania, an account that turned out to be false, but the newspaper’s report that the Continental Congress had fled from Philadelphia was accurate. Fearing that Virginia would be attacked, the assembly decided on December 21, 1776, to grant Patrick Henry and his council extraordinary powers.20 A severely constrained executive was one thing in theory but quite another with the enemy at the door.