Notes on the State of Virginia (1802)/Query 13
THE conſtitution of the ſtate, and its ſeveral charters?
Queen Elizabeth by her letters-patent, bearing date March 25, 1584, licenſed Sir Walter Raleigh to ſearch for remote heathen lands, not inhabited by chriſtian people, and granted to him, in fee ſimple, all the ſoil within 200 leagues of the places where his people ſhould, within 6 years make their dwellings or abidings; reſerving only to herſelf and her ſucceſſors, their allegiance and one-fifth part of all the gold and ſilver ore they ſhould obtain. Sir Walter immediately ſent out two ſhips which viſited Wococon iſland in North-Carolina, and the next year diſpatched ſeven with 107 men, who ſettled in Roanoke iſland, about latitude 35° 50′. Here Okiſko, King of the Weopomeiocs, in a full council of his people is ſaid to have acknowledged himſelf the homager of the Queen of England, and, after her, of Sir Walter Raleigh. A ſupply of 50 men were ſent in 1586, and 150 in 1587. With theſe laſt, Sir Walter ſent a governor, appointed him 12 aſſiſtants, gave them a charter of incorporation, and inſtructed them to ſettle on Cheſapeak bay. They landed however at Hattoraſk. In 1588, when a fleet was ready to ſail with a new ſupply of coloniſts and neceſſaries, they were detained by the Queen to aſſiſt againſt the Spaniſh armada. Sir Walter having now expended 40,000l. in theſe enterpriſes, obſtructed occaſionally by the crown without a ſhilling of aid from it, was under a neceſſity of engaging others to adventure their money. He therefore, by deed bearing date the 7th of March 1589, by the name of Sir Walter Raleigh, chief governor of Aſſamàcomòc, (probably Acomàc,) alias Wingadacoia, alias Virginia, granted to Thomas Smith and others, in conſideration of their adventuring certain ſums of money, liberty of trade to his new country, free from all cuſtoms and taxes for ſeven years, excepting the fifth part of the gold and ſilver ore to be obtained; and ſtipulated with them, and the other aſſiſtants, then in Virginia, that he would confirm the deed of incorporation which he had given in 1587, with all the prerogatives, juriſdictions, royalties and privileges granted to him by the Queen. Sir Walter, at different times, ſent five other adventurers hither, the laſt of which was in 1602; for in 1603 he was attained, and put into cloſe impriſonment, which put an end to his cares over his infant colony. What was the particular fate of the colonies he had before ſent and ſeated, has never been known: whether they were murdered, or incorporated with the ſavages.
Some gentlemen and merchants, ſuppoſing that by the attainder of Sir Walter Raleigh the grant to him was forfeited, not enquiring over-carefully whether the ſentence of an Engliſh court could effect lands not within the juriſdiction of that court, petitioned king James for a new grant of Virginia to them. He accordingly executed a grant to Sir Thomas Gates and others bearing date the 9th of March 1607, under which, in the ſame year a ſettlement was effected at James' town and ever after maintained. Of this grant however no particular notice need be taken, as it was ſuperſeded by letters-patent of the ſame king, of May, 23, 1609 to the Earl of Saliſbury and others, incorporating them, by the name of ‘the treaſurer and company of adventurers and planters of the city of London for the firſt colony in Virginia,’ granting to them and their ſucceſſors all the lands in Virginia from Point Comfort along the ſea-coaſt to the northward 200 miles, and from the ſame point along the ſeacoaſt to the ſouthward 200 miles, and all the ſpace from this precinct on the ſea-coaſt up into the land, weſt and north-weſt from ſea to ſea, and the iſlands within one hundred miles of it, with all the commodities, juriſdictions, royalties, privileges, franchiſes and pre-eminenceſes within the ſame, and thereunto and thereabouts, by ſea and land, appertaining in as ample manner as had before been granted to any adventurer: to be held of the king and his ſucceſſors, in common ſocage, yielding one-fifth part of the gold and ſilver ore to be therein found, for all manner of ſervices; eſtabliſhing a council in England for the direction of the enterpriſe, the members of which were to be choſen and diſplaced by the voice of the majority of the company and adventurers, and were to have the nomination and revocation of governors, officers, and miniſters, which by them ſhould be thought needful for the colony, the power of eſtabliſhing laws and forms of government and magiſtracy, obligatory not only within the colony, but alſo on the ſeas in going and coming to and from it: authoriſing them to carry thither any perſons who ſhould conſent to go, freeing them for ever from all taxes and impoſitions on any goods or merchandiſe on importations into the colony, or exportation out of it, except the five per cent. due on all goods imported into the Britiſh dominions, according to the ancient trade of merchants; which five per cent. only being paid they might, within 13 months re-export the ſame goods into foreign parts, without any cuſtom, tax, or other duty to the king or any of his officers or deputies; with powers of waging war against thoſe who ſhould annoy them; giving to the inhabitants of the colony all the rights of natural ſubjects, as if born and abiding in England; and declaring that theſe letters ſhould be conſtrued, in all doubtful parts, in ſuch manner as ſhould be moſt for the benefit of the grantees.
Afterwards on the 12th of March 1612, by other letters-patent, the king added to his former grants, all iſlands in any part of the ocean between the 30th and 41ſt degrees of latitude, and within 300 leagues of any of the parts before granted to the treaſurer and company, not being poſſeſſed or inhabited by any other chriſtian prince or ſtate, nor within the limits of the northern colony.
In purſuance of the authorities given to the company by theſe charters, and more eſpecially of that part in the charter of 1609, which authoriſed them to eſtabliſh a form of government, they on the 24th of July 1621, by charter under their common ſeal, declared that from thence forward there ſhould be two ſupreme councils in Virginia, the one to be called the council of ſtate, to be placed and diſplaced by the treaſurer, council in England, and company, from time to time, whoſe office was to be that of aſſiſting and adviſing the governor; the other to be called the general aſſembly to be covened by the governor once yearly, or oftener, which was to conſiſt of the council of ſtate, and two bergeſſes out of every town, hundred, or plantation, to be reſpectively choſen by the inhabitants. In this all matters were to be decided by the greater part of the votes preſent; reſerving to the governor a negative voice; and they were to have power to treat, conſult, and conclude all emegrant occaſions concerning the public weal, and to make laws for the behoof and government of the colony, imitating and following the laws and policy of England as nearly as might be: providing that theſe laws ſhould have no force till ratified in a general quarter court of the company in England and returned under their common ſeal, and declaring that, after the government of the colony ſhould be well framed and ſettled, no orders of the council in England ſhould bind the colony unleſs ratified in the ſaid general aſſembly. The king and company quarrelled, and by a mixture of law and force, the latter were ouſted of all their rights, without retribution, after having expended 100,000l, in eſtabliſhing the colony, without the ſmalleft aid from government. King James ſuſpended their powers by proclamation of July 15, 1624, and Charles I. took the government into his own hands. Both ſides had their partiſans in the colony; but in truth the people of the colony in general thought themſelves little concerned in the diſpute. There being three parties intereſted in theſe ſeveral charters, what paſſed between the firſt and ſecond it was thought could not affect the third. If the king ſeized on the power of the company, they only paſſed into other hands, without increaſe or dimenution, while the rights of the people remained as they were. But they did not remain ſo long. The northern parts of their country were granted away to the lords Baltimore and Fairfax, the firſt of theſe obtaining alſo the rights of ſeparate juriſdiction and government. And in 1650 the parliament, conſidering itſelf as ſtanding in the place of their depoſed king, and as having ſucceeded to all his powers, without as well as within the realm, began to aſſume a right over the colonies, paſſing an act for inhibiting their trade with foreign nations. This ſucceſſion to the exerciſe of kingly authority gave the firſt color for parliamentary interference with the colonies, and produced that fatal precedent which they continued to follow after they had retired, in other reſpects, within their proper functions. When this colony, therefore, which ſtill maintained its oppoſition to Cromwell and the parliament, was induced in 1651 to lay down their arms, they previouſly ſecured their moſt eſſential rights, by a ſolemn convention, which having never ſeen in print, I will here inſert literally from the records.
‘Articles agreed on & concluded at James Cittie in Virginia for the ſurrendering and ſettling of that plantation under the obedience & government of the Commonwealth of England by the Commiſſioners of the Councill of ſtate by authoritie of the parliamt. of England & by the grand aſſembly of the Governour, Councill & Burgeſſes of that countrey.
‘Frſt it is agreed and conſted that the plantation of Virginia, and all the inhabitants thereof ſhall be and remain in due obedience and ſubjection to the Comon wealth of England according to the laws there eſtabliſhed, and that this ſubmiſſion and ſubſcription bee acknowledged a voluntary act not forced nor conſtrained by a conqueſt upon the countrey, and that they ſhall have and enjoy ſuch freedoms and privileges as belong to the free borne people of England, and that the former government by the Commiſſions and Inſtructions be void and null.
‘2ly, Secondly that the Grand aſſembly as formerly ſhall convene & tranſact the affairs of Virginia wherein nothing is to be acted or done contrarie to the government of the Comon wealth of England and the laws there eſtabliſhed.
‘3ly, That there ſhall be a full and total remiſſion and indempnitite of all acts, words, or writings done or ſpoken againſt the parliament of England in relation to the ſame.
‘4ly, That Virginia ſhall have & enjoy the antient bounds and Lymitts granted by the charters of former kings, and that we ſhall ſeek a new charter from the parliament to that purpoſe againſt any that have intrencht upon the rights thereof.
‘5ly, That all the patents of land granted under the collony ſeal by any of the precedent governours ſhall be and remain in their full force & ſtrength.
‘61y, That the priviledge of having ffiftie acres of land for every perſon tranſported in that collonie ſhall continue as formerly granted.
‘7ly, That the people of Virginia have free trade as the people of England do enjoy to all places and with all nations according to the lawes of that Comon wealth, and that Virginia ſhall enjoy all privilidges equal with any Engliſh plantations in America.
‘8ly, That Virginia ſhall be free from all taxes, cuſtoms & impoſitions whatſoever, & none to be impoſed on them without conſent of the Grand aſſembly, and ſoe that neither ffortes nor caſtles bee erected or garriſons maintained without their conſent.
‘9ly, That noe charge ſhall be required from this countrey in reſpect of this preſent ffleet.
‘10ly, That for the future ſettlement of the countrey in their due obedience, the engagement ſhall be tendered to all the inhabitants according to act of parliament made to that purpoſe, that all perſons who ſhall refuſe to ſubſcribe the ſaid engagement, ſhall have a yeare's time if they pleaſe to remove themſelves & and their eſtates out of Virginia, and in the mean time during the ſaid yeare to have equal juſtice as formerly.
‘11ly, That the uſe of the booke of common prayer ſhall be permitted for one yeare enſuinge with reference to the conſent of the major part of the pariſhes, provided that thoſe which relate to kingſhipp or that government be not uſed publiquely, and the continuance of minſters in their places, they not miſdemeaning themſelves, and the payment of their accuſtomed dues and agreements made with them reſpectively ſhall be left as they now ſtand during this enſuing yeare.
‘12ly, That no man's cattell ſhall be queſtioned as the companies unleſs ſuch as have been entruſted with them or have diſpoſed of them without order.
‘13ly, That all ammunition, powder & armes, other than for private uſe, ſhall be delivered up, ſecuritie being given to make ſatisfaction for it.
‘14ly, That all goods already brought hither by the Dutch or others which are now on ſhoar ſhall be free from ſurprizall.
‘15ly, That the quittrents granted unto us by the late kinge for ſeven yeares bee confirmed.
‘16ly, That the commiſſioners for the parliament ſubſcribing theſe articles engage themſelves & the honour of parliament for the full performance thereof: and that the preſent governour & the councill & the burgeſſes do likewiſe ſubſcribe and engage the whole collony on their parts.
‘Theiſe articles were ſigned & ſealed by the Commiſſioners of the Council of ſtate for the Common wealth of England the twelveth day of March 1651.
Then the following articles ſtipulated by the governor and council, which relate merely to their own perſons and property, and then the enſuing inſtrument:
‘An act of indempnitie made att the ſurrender of the countrey.
‘Whereas by the authoritie of the parliament wee the commiſſioners appointed by the councill of ſtate authorized thereto having brought a fleet & force before James cittie in Virginia to reduce that collonie under the obedience of the Common wealth of England, and findeing force raiſed by the Governour & countrey to make oppoſition againſt the ſaid ffleet wereby aſſured danger appearinge of the ruin & deſtruction of the plantation, for preſervation whereof the Burgeſſes of all the ſeveral plantations being called to adviſe and aſſiſt therein, uppon long & ſerious debate, and in ſad contemplation of the great miſeries and certaine deſtruction which were ſoe neerely hovering over the whole countrey; wee the ſaid commiſſioners have thought fitt & condeſcended and granted to ſigne and confirme under our hands, ſeales & by our oath, Articles bearinge date with theiſe preſents, and do further declare that by the authoritie of the parliament and Comon wealth of England derived unto us their commiſſioners, that according to the articles in generall wee have granted an act of indemnitie and oblivion to all the inhabitants of this colloney from all words, actions, or writings that have been ſpoken acted or writ againſt the parliament or Common wealth of England or any other perſon from the beginning of the world to this daye. And this wee have done that all the inhabitants of the collonie may live quietly & ſecurely under the Common wealth of England. And wee do promiſe that the parliament and comon wealth of England ſhall confirm and make good all thoſe tranſactions of ours. Witneſs our hands & ſeales this 12th of March 1651. Richard Bennet—Seale. Wm. Claiborn—Seale. Edm. Curtis — Seale.’
The colony ſuppoſed, that, by this ſolemn
convention, entered into with arms in their hands,
they had ſecured the ancient limits of their country,
its free trade, its exemption from taxation but by
their own aſſembly, and excluſion of military force
from among them. Yet in every of theſe points was
this convention violated by ſubſequent kings and
parliaments, and other infractions of their conſtitution, equally dangerous committed. Their general
aſſembly, which was compoſed of the council of
ſtate and burgeſſes, ſitting together and deciding
by plurality of voices, was ſplit into two houſes,
by which the council obtained a ſeparate negative
on their laws. Appeals from their ſupreme court,
which had been fixed by law in their general
aſſembly, were arbitrarily revoked to England, to be
there heard before the king and council. Inſtead
of four hundred miles on the ſea-coaſt, they were
reduced, in the ſpace of thirty years, to about one
hundred miles. Their trade with foreigners was
totally ſuppreſſed, and when carried to
Great-Britain, was there loaded with impoſts. It is
unneceſſary, however, to glean up the ſeveral inſtances
of injury, as ſcattered through American and
Britiſh hiſtory, and the more eſpecially as by
paſſing on to the acceſſion of the preſent king, we
ſhall find ſpecimens of them all, aggravated, multiplied
and crouded within a ſmall compaſs of time,
ſo as to evince a fixed deſign of conſidering our
rights natural, conventional and chartered as mere
nullities. The following is an epitome of the firſt
fifteen years of his reign. The colonies were taxed
internally and externally; their eſſential intereſts
ſacrificed to individuals in Great Britain;
their legiſlatures ſuſpended; charters annulled;
trials by juries taken away; their perſons ſubjected
to tranſportation acroſs the Atlantic, and to trial
before foreign judicatories: their ſupplications
for redreſs thought beneath anſwer; themſelves
publiſhed as cowards in the councils of their mother
country and courts of Europe; armed troops
ſent among them to enforce ſubmiſſion to theſe
violences; and actual hoſtilities commenced againſt them. No alternative was preſented but
reſiſtance, or unconditional ſubmiſſion. Between
theſe could be no heſitation. They cloſed in the
appeal to arms. They declared themſelves
independent ſtates. They confederated together into
one great republic; thus ſecuring to every ſtate
the benefit of an union of their whole force. In
each ſtate ſeparately a new form of government
was eſtabliſhed. Of ours particularly the following
are the outlines. The executive powers are
lodged in the hands of a governor, choſen
annually, and incapable of acting more than three
years in ſeven. He is aſſiſted by a council of
eight members. The judiciary powers are
divided among ſeveral courts, as will be hereafter
explained. Legiſlation is exerciſed by two houſ
of aſſembly, the one called the houſe of
delegates, compoſed of two members from each county,
choſen annually by the citizens poſſeſſing an
eſtate for life in 100 acres of uninhabited land, or
25 acres with a houſe on it, or in a houſe or lot in
ſome town: the other called the ſenate, conſiſting
of 24 members, choſen quadrenially by the
ſame electors, who for this purpoſe are diſtributed
into 24 diſtricts. The concurrence of both houſes
is neceſſary to the paſſage of a law. They have
the appointment of the governor and council, the
judges of the ſuperior courts, auditors, attorney-general,
treaſurer, regiſter of the land office, and
delegates to congreſs. As the diſmemberment
of the ſtate had never had its confirmation, but, on
the contrary, had always been the ſubject of
proteſtation and complaint, that it might never be in
our power to raiſe ſcruples on that ſubject, or to
diſturb the harmony of our new confederacy, the grants to Maryland, Pennſylvania, and the two
Carolinas, were ratified.
This conſtitution was formed when we were new and unexperienced, in the ſcience of government. It was the firſt too which was formed in the whole United States. No wonder then that time and trial have diſcovered very capital defects in it.
1. The majority of the men in the ſtate, who pay and fight for its ſupport, are unrepreſented in the legiſlature, the roll of freeholders entitled to vote, not including generally the half of thoſe on the roll of the militia, or of the tax-gatherers.
2. Among thoſe who ſhare the repreſentation, the ſhares are very unequal. Thus the county of Warwick, with only 100 fighting men, has an equal repreſentation with the county of Loudon, which has 1746. So that every mam in Warwick has as much influence in the government as 17 me in Loudon. But leſt it ſhould be thought that an equal interſperſion of ſmall among large counties, through the whole ſtate, may prevent any danger of injury to particular parts of it, we will divide it into diſtricts, and ſhow the proportions of land, of fighting men, and of repreſentation in each.
An inſpection into this table will ſupply the place of commentaries on it. It will appear at once that 19,000 men, living below the falls of the rivers, poſſeſs half the ſenate, and want four members only of poſſeſſing a majority of the houſes of delegates; a want more than ſupplied by the vicinity of their ſituation to the ſeat of government, and of courſe the greater degree of convenience and punctuality with which their members may and will attend in the legiſlature. Theſe 19,000 therefore, living in one part of the country, give law to upwards of 30,000 living in another, and appoint all their chief officers executive and judiciary. From the difference of their ſituation and circumſtances, their intereſts will often be very different.
3. The ſenate is, by its conſtitution, too homogenous with the houſe of delegates. Being choſen by the ſame electors, at the ſame time, and out of the ſame ſubjects, the choice falls of courſe on men of the ſame deſcription. The purpoſe of eſtabliſhing different houſes of legiſlation is to introduce the influence of different intereſts or different principles. Thus in Great-Britain it is ſaid their conſtitution relies on the houſes of commons for honeſty, and the lords for wiſdom; which would be a rational reliance if honeſty were to be bought with money, and if wiſdom were hereditary. In ſome of the American ſtates the delegates and ſenators are ſo choſen, as that the firſt repreſent the perſons, and the ſecond the property of the ſtate. But with us, wealth and wiſdom have equal chance for admiſſion into both houſes. We do not therefore derive from the ſeparation of our legiſlature into two houſes, thoſe benefits which a proper complication of principles is capable of producing, and thoſe which alone can compenſate the evils which may be produced by their diſſentions.
4. All the powers of government, legiſlative,
executive, and judiciary, reſult to the legiſlative
body. The concentrating theſe in the ſame hands
is preciſely the definition of deſpotic government.
It will be no alleviation that theſe powers will be
exerciſed by a plurality of hands, and not by a
ſingle one: 173 depoſits would ſurely be as
oppreſſive as one. Let thoſe who doubt it turn their
eyes on the republic of Venice. As little will it
avail us that they are choſen by ourſelves. An
elective deſpotiſm was not the government we fought
for; but one which ſhould not only be founded on
free principles, but in which the powers of
government ſhould be ſo divided and balanced among
ſeveral bodies of majeſtracy, as that no one could tranſcend their legal limits, without being effectually
checked and reſtrained by the others. For
this reaſon that convention, which paſſed the
ordinance of government, laid its foundation on this
baſis, that the legiſlative, executive and judiciary
departments ſhould be ſeparate and diſtinct, ſo
that no perſon ſhould exerciſe the powers of more
than one of them at the ſame time. But no
barrier was provided between theſe ſeveral powers.
The judiciary and executive members were left
dependant on the legiſlative, for their ſubſiſtence
in office, and ſome of them for their continuance
in it. If therefore the legiſlature aſſumes executive
and judiciary powers, no oppoſition is likely
to be made; nor, if made, can it be effectual;
becauſe in that caſe they may put their proceed
into form of an act of aſſembly, which will
render them obligatory on the other branches.
They have accordingly, in many inſtances, decided
rights which ſhould have been left to judiciary
controverſy: and the direction of the executive,
during the whole time of their ſeſſion, is becoming
habitual and familiar. And this is done with no
ill intention. The views of the preſent members
are perfectly upright. When they are led out of
their regular province, it is by art in others, and
inadvertence in themſelves. And this will probably
be the caſe for ſome time to come. But it will
not be a very long time. Mankind ſoon learn to
make intereſted uſes of every right and power
which they poſſeſs or may aſſume. The public
money and public liberty, intended to have been
depoſited with three branches of magiſtracy but
found inadvertently to be in the hands of one only,
will ſoon be diſcovered to be ſources of wealth and dominion to thoſe who hold them;
diſtinguiſhed too by this tempting circumſtance, that
they are the inſtrument, as well as the object of
acquiſition. With money we will get men, ſaid
Cæſar, and with men we will get money. Nor
ſhould our aſſembly be deluded by the integrity
of their own purpoſes, and conclude that theſe
unlimited powers will never be abuſed, becauſe
themſelves are not diſpoſed to abuſe them. They
ſhould look forward to a time and that not a
diſtant one, when corruption in this, as in the country
from which we derived our origin, will have
ſeized the heads of government, and be ſpread by
them through the body of the people; when they
will purchaſe the voices of the people, and make
them pay the price. Human nature is the ſame
on every ſide of the Atlantic, and will be alike
influenced by the ſame cauſes. The time to guard
againſt corruption and tyranny, is before they
ſhall have gotten hold on us. It is better to keep
the wolf out of the fold, than to truſt to drawing
his teeth and talons after he ſhall have entered.
To render theſe conſiderations the more cogent,
we muſt obſerve in addition.
5. That the ordinary legiſlature may alter the conſtitution itſelf. On the diſcontinuance of aſſemblies, it became neceſſary to ſubſtitute in their place ſome other body, competent to the ordinary buſineſs of government, and to the calling forth the powers of the ſtate for the maintenance of our oppoſition to Great-Britain. Conventions were therefore introduced, conſiſting of two delegates from each county, meeting together and forming one houſe, on the plan of the former houſe of burgeſſes, to whoſe places they ſucceeded. Theſe were at firſt choſen anew for every particular ſeſſion. But in March 1775 they recommended to the people to chooſe a convention, which ſhould continue in office a year. This was done accordingly in April 1775, and in the July following that convention paſſed an ordinance for the election of delegates in the month of April annually. It is well known, that in July 1775, a ſeparation from Great-Britain and eſtabliſhment of republican government had never yet entered into any perſon's mind. A convention therefore choſen under that ordinance, cannot be ſaid to have been choſen for the purpoſes which certainly did not exiſt in the minds of thoſe who paſſed it. Under this ordinance, at the annual election in April 1776, a convention for the year was choſen. Independence, and the eſtabliſhment of a new form of government, were not even yet the objects of the people at large. One extract from the pamphlet called Common Senſe had appeared in the Virginia papers in February, and copies of the pamphlet itſelf had got into a few hands. But the idea had not been opened to the maſs of the people in April, much leſs can it be ſaid that they had made up their minds in its favor. So that the electors of April 1776, no more than the legiſlators of July 1775, not thinking of independence and a permanent republic, could not mean to veſt in theſe delegates powers of eſtabliſhing them, or any authorities other than thoſe of the ordinary legiſlatue. So far as a temporary organization of government was neceſſary to render our oppoſition energetic, ſo far their organization was valid. But they received in their creation no powers but what were given to every legiſlature before and ſince. They could not therefore paſs an act tranſcendant to the powers of other legiſlatures. If the preſent aſſembly paſs an act, and declare it ſhall be irrevocable by ſubſequent aſſemblies, the declaration is merely void, and the act repealable, as other acts are. So far, and no farther authoriſed, they organized the government by the ordinance entitled a conſtitution or form of government. It pretends to no higher authority than the other ordinances of the ſame ſeſſion; it does not ſay, that it ſhall be perpetual that it ſhall be unalterable by other legiſlatures; that it ſhall be tranſcendant above the powers of thoſe, who they knew would have equal power with themſelves. Not only the ſilence of the inſtrument is a proof they thought it would be alterable, but their own practice alſo; for this very convention, meeting as a houſe of delegates in general aſſembly with the ſenate in the autumn of that year, paſſed acts of aſſembly in contradiction to their ordinance of government: and every aſſembly from that time to this has done the ſame. I am ſafe therefore in the poſition, that the conſtitution itſelf is alterable by the ordinary legiſlature. Though this opinion ſeems founded on the firſt elements of common ſenſe, yet is the contrary maintained by ſome perſons. 1. Becauſe ſay they, the conventions were veſted with every power neceſſary to make effectual oppoſition to Great-Britain. But to complete this argument, they muſt go on, and ſay further, that effectual oppoſition could not be made to Great-Britain, without eſtabliſhing a form of government perpetual and unalerable by the legiſlature; which is not true. An oppoſition which at ſome time or other was to come to an end, could not need a perpetual inſtitution to carry it on: and a government, amendable as its defects ſhould be diſcovered, was as likely to make effectual reſiſtance, as one which ſhould be unalterably wrong. Beſides, the aſſemblies were as much veſted with all powers requiſite for reſiſtance as the conventions were. It therefore theſe powers included that of modelling the form of government in the one caſe, they did ſo in the other. The aſſemblies then as well as the conventions may model the government; that is they may alter the ordinance of government. 2. They urge, that if the convention had meant that this inſtrument ſhould be alterable, as their other ordinances were, they would have called it an ordinance: but they have called it a conſtitution, which ex vi termini means ‘an act above the power of the ordinary legiſlature.’ I anſwer, that conſtitutio, conſtitutum, ſtatutum, lex, are convertible terms. ‘Conſtitutio dicitur jus quod a principle conditure.’ Conſtitutum, quad ab imperatoribus reſcriptum ſtatutumve eſt.’ Statutum idem quod lex.’ Calvini Lexicon juriſdicum. Conſtitution and ſtatute were originally terms of the civil law, and from thence introduced by eccleſiaſtics into the Engliſh law. Thus in the ſtatute 25 Hen. 8. c. 19. §. 1. Conſtitutions and ordinances are uſed as ſynonimous. The term conſtitution has many other ſignifications in phyſics and in politics; but in juriſprudence, whenever it is applied to any act of the legiſlature, it invariably means a ſtatute, law, or ordinance, which is the preſent caſe. No inference then of a different meaning can be drawn from the adoption of this title; on the contrary, we might conclude, that by their affixing to it a term ſynonimous with ordinance or ſtatute. But of what conſequence is their meaning, where their power is denied? If they mean to do more than they had power to do, did this give them power? it is not the name, but the authority that renders an act obligatory. Lord Coke ſays, ‘an article of the ſtatute 11. R. 2. c. 5. that no perſon ſhould attempt to revoke any ordinance then made, is repealed, for that ſuch reſtraint is againſt the juriſdiction and power of the parliament,’ 4. inſt. 42. and again, though divers parliaments have attempted to reſtrain ſubſequent parliaments, yet could they never effect it; for the latter parliament hath ever power, to abrogate, ſuſpend, qualify, explain, or make void the former in the whole or in any part thereof, notwithſtanding any words of reſtraint, prohibition, or penalty, in the former: for it is a maxim in the laws of the parliament, quad leges poſteriores priores contrarias abrogant.’ 4. Inſt 43.—To get rid of the magic ſuppoſed to be in the word conſtitution, let us tranſlate it into its definition as given by thoſe who think it above the power of the law; and let us ſuppoſe the convention inſtead of ſaying, ‘we the ordinary legiſlature eſtabliſh a conſtitution’ had ſaid, ‘we the ordinary legiſlature eſtabliſh an act above the power of the ordinary legiſlature.’ Does not this expoſe the abſurdity of the attempt? 3. But, ſay they, the people have acquieſced, and this has given it an authority ſuperior to the laws. It is true, that the people did not rebel againſt it: and was that a time for the people to riſe in rebellion? Should a prudent acquieſcence, at a critical time, be conſtrued into a confirmation of every illegal thing done through that period? Beſides, why ſhould they rebel? At an annual election, they had choſen delegates for the year, to exerciſe the ordinary powers of legiſlation, and to manage the great conteſt in which they were engaged. Theſe delegates thought the conteſt would be beſt managed by an organized government. They therefore, among others, paſſed an ordinance of government. They did not preſume to call it perpetual and unalterable. They well knew they had no power to make it ſo: that our choice of them had been for no ſuch purpoſe, and at a time when we could have no ſuch purpoſe in contemplation. Had an unalterable form of government been meditated, perhaps we ſhould have choſen a different ſet of people. There was no cauſe then for the people to riſe in rebellion. But to what dangerous lengths will this argument be lead? Did the acquieſcence of the colonies under the various acts of power exerciſed by Great-Britain in our infant ſtate, confirm theſe acts, and ſo far inveſt them with the authority of the people as to render them unalterable, and our preſent reſiſtance wrong? On every unauthoritative exerciſe of power by the legiſlature, muſt the people riſe in rebellion, or their ſilence be conſtrued into a ſurrender of that power to them? If ſo, how many rebellions ſhould we have had already? One certainly for every ſeſſion of aſſembly. The other ſtates in the union have been of opinion, that to render a form of government unalterable by ordinary acts of aſſembly, the people muſt delegate perſons with ſpecial powers. They have accordingly choſen ſpecial conventions to form and fix their governments. The individuals then who maintain the contrary opinion in this country, ſhould have the modeſty to ſuppoſe it poſſible that they may be wrong and the reſt of America right. But if there be only a poſſibility of their being wrong, if only a plauſible doubt remains of the validity of the ordinance of government, is it not better to remove that doubt, by placing it on a bottom which none will diſpute? If they be right we ſhall only have the unneceſſary trouble of meeting once in convention. If they be wrong, they expoſe us to the hazard of having no fundamental rights at all. True it is, this is no time for deliberating on forms of government. While an enemy is within our bowels, the firſt object is to expell him. But when this ſhall be done, when peace ſhall be eſtabliſhed, and leiſure given us for intrenching within good forms the rights for which we have bled, let no man be found indolent enough to decline a little more trouble for placing them beyond the reach of queſtion. If any thing more be requiſite to produce a conviction of the expediency of calling a convention at a proper ſeaſon to fix our form of government, let it be the reflection,
6. That the aſſembly exerciſes a power of determining a quorum of their own body which may legiſlate for us. After the eſtabliſhment of the new form they adhere to the Lex majoris partis, founded in  common law as well as common right. It is the  natural law of every aſſembly of men, whoſe numbers are not fixed by any other law. They continued for ſome time to require the pretence of a majority of their whole number, to paſs an act. But the Britiſh parliament fixes its own quorum: our former aſſemblies fixed their own quorum: and one precedent in favor of power is ſtronger than an hundred againſt it. The houſe of delegates therefore have  lately voted that, during the preſent dangerous invaſion, forty members ſhall be a houſe to proceed to buſineſs. They have been moved to this by the fear of not being able to collect a houſe. But this danger could not authorize them to call that a houſe which was none: and if they may fix it at one number, they may at another, till it loſes its fundamental character of being a repreſentive body. As this vote expires with the preſent invaſion, it is probable the former rule will be permitted to revive: becauſe at preſent no ill is meant. The power however of fixing their own quorum has been avowed, and a precedent ſet. From forty it may be reduced to four, and from four to one: from a houſe to a committee to a chairman or ſpeaker, and thus an oligarchy be ſubſtituted under forms ſuppoſed to be regular. ‘Omina mala exempla ex bonis orta ſunt: ſed ubi imperium ad ignaros aunt minus bonus pervenit, novum illud exemplum ab dignis et idoneis ad indignos et non idoneos fertur.’ When therefore it is conſidered, that there is no legal obſtacle to the aſſumption by the aſſembly of all the powers legiſlative, executive, and judiciary, and that theſe may come to the hands of the ſmalleſt rag of delegation, ſurely the people will ſay, and their repreſentatives, while yet they have honeſt repreſentatives, will adviſe them to ſay, that they will not acknowledge as laws any acts not conſidered and aſſented to by the major part of their delegates.
In enumerating the defects of the conſtitution, it would be wrong to count among them what is only the error of particular perſons. In December 1776, our circumſtances being much diſtreſſed, it was propoſed in the houſe of delegates to create a dictator, inveſted with every power legiſlative, executive and judiciary, civil and military, of life and of death, over our perſons and over our properties: and in June 1781, again under calamity, the ſame propoſition was repeated, and wanted a few votes only of being paſſed.—One who entered into this conteſt from a pure love of liberty, and a ſenſe of injured rights, who determined to make every ſacrifice and to meet every danger, for the re-eſtabliſhment of thoſe rights on a firm baſis, who did not mean to expend his blood and ſubſtance for the wretched purpoſe of changing this maſter for that, but to place the powers of governing him in a plurality of hands of his own choice, ſo that the corrupt will of no one man might in future oppreſs him, muſt ſtand confounded and diſmayed when he is told, that a conſiderable portion of that plurality had meditated the ſurrender of them into a ſingle hand, and, in lieu of a limited monarchy, to deliver him over to a deſpotic one! How muſt we find his efforts and ſacrifices abuſed and baffled, if he may ſtill by a ſingle vote be laid proſtrate at the feet of one man? In God's name from whence have they derived this power? Is it from our ancient laws? None ſuch can be produced. Is it from any principle in our new conſtitution expreſſed or implied? Every lineament of that expreſſed or implied, is in full oppoſition to it. Its fundamental principle is, that the ſtate ſhall be governed as a commonwealth. It provides a republican organization, proſcribes under the name of prerogative the exerciſe of all powers undefined by the laws; places on this baſis the whole ſyſtem of our laws; and by conſolidating them together, chuſes that ſhould be left to ſtand or fall together, never providing for any circumſtances, nor admitting that ſuch could ariſe, wherein either ſhould be ſuſpended, no, not for a moment. Our ancient laws expresſly declare, that thoſe who are but delegates themſelves ſhall not delegate to other powers which require judgment and integrity in their exerciſe.—Or was this propoſition moved on a ſuppoſed right in the movers of abandoning their poſts in a moment of diſtreſs? The ſame laws forbid the abandonment of that poſt, even on ordinary occaſions: and much more a transfer of their powers into other hands and other forms, without conſulting the people. They never admit the idea that theſe, like ſheep or cattle, may be given from hand to hand without an appeal to their own will.—Was it from the neceſſity of the caſe? Neceſſities which diſſolve a government, do not convey its authority to an oligarchy or a monarchy. They throw back, into the hands of the people, the powers they had delegated, and leave them as individuals to ſhift for themſelves. A leader may offer, but not impoſe himſelf nor be impoſed on them. Much leſs can their necks be ſubmitted to his ſword, their breath to be held at his will or caprice. The neceſſity which ſhould operate theſe tremendous effects ſhould at leaſt be palpable and irreſiſtible. Yet in both inſtances, where it was feared, or pretended with us, it was belied by the event. It was belied too by the preceding experience of our ſiſter ſtates, ſeveral of whom had grappled through greater difficulties without abandoning their forms of government. When the propoſition was firſt made, Maſſachuſetts had found even the government of committees ſufficient to carry them through an invaſion. But we at the time of that propoſition were under no invaſion. When the ſecond was made, there had been added to this example thoſe of Rhode-Iſland, New-York, New-Jerſey, and Pennſylvania, in all of which the republican form had been found equal to the taſk of carrying them through the ſevereſt trials. In this ſtate alone did there exiſt ſo little virtue, that fear was to be fixed in the hearts of the people, and to become the motive of their exertions and the principle of their government? The very thought alone was treaſon againſt the people; was treaſon againſt mankind in general; rivetting for ever the chains which bow down their necks, by giving to their oppreſſors a proof, which they would have trumpetted through the univerſe, of the imbecility of republican government, in times of preſſing danger, to ſhield them from harm. Thoſe who aſſume the right of giving away the reins of government in any caſe, muſt be ſure that the herd, whom they hand on to the rods and hatchet of the dictator, will lay their heads on the block when he ſhall nod to them. But if our aſſemblies ſuppoſed ſuch a reſignation in the people, I hope they miſtook their character. I am of opinion, that the government, inſtead of being braced and invigorated for greater exertions under their difficulties, would have been thrown back upon the bungling machinery of county committees for adminiſtration, till a convention could have been called, and its wheels again ſet into regular motion. What a cruel moment was this for creating ſuch an embarraſsment, for putting to the proof the attachment of our countrymen to republican government! Thoſe who meant well, of the advocates for this meaſure, (and moſt of them meant well, for I know them perſonally, had been their fellow-laborers in the common cauſe, and had often proved the purity of their principles, had been ſeduced in their judgment by the example of an ancient republic, whoſe conſtitution and circumſtances were fundamentally different. They had ſought this precedent in the hiſtory of Rome, where alone it was to be found, and where at length too it had proved fatal. They had taken it from a republic rent by the moſt bitter factions and tumults, where the government was of a heavy-handed unfeeling ariſtocracy, over a people ferocious, and rendered deſperate by poverty and wretchedneſs; tumults which could not be allayed under the moſt trying circumſtances, but by the omnipotent hand of a ſingle deſpot. Their conſtitution therefore allowed a temporary tyrant to be erected, under the name of a dictator; and that temporary tyrant after a few examples became perpetual.—They miſapplied this precedent to a people, mild in their diſpoſitions, patient under their trial, united for the public liberty, and affectionate to their leaders. But if from the conſtitution of the Roman government there reſulted to their ſenate a power of ſubmitting all their rights to the will of one man, does it follow, that the aſſembly of Virginia, have the ſame authority? What clauſe in our conſtitution has ſubſtituted that of Rome, by way of reſiduary proviſion, for all caſes not otherwiſe provided for? Or if they may ſtep ad libitum into any other form of government for precedents to rule us by, for what oppreſſion may not a precedent be found in this world of the bellum omnium in omnia?—Searching for the foundations of this propoſition, I can find none which may pretend a color of right or reaſon, but the defect before developed, that there being no barrier between the legiſlature, executive, and judiciary departments, the legiſlature may ſeize the whole: that having ſeized it, and poſſeſſing a right to fix their own quorum, they may reduce that quorum to one, whom they may call a chairman, ſpeaker, dictator, or by any other name they pleaſe.—Our ſituation is indeed perilous, and I hope my countrymen will be ſenſible of it, and will apply, at a proper ſeaſon the proper remedy; which is a convention to fix the conſtitution, to amend its defects, to bind up the ſeveral branches of government by certain laws, which when they tranſgreſs their acts ſhall become nullities; to render unneceſſary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquieſcence ſhall be conſtrued into an intention to ſurrender thoſe rights.
- ↑ Art. 4.
- ↑ Art. 7.
- ↑ Art. 8.
- ↑ Art. 8.
- ↑ Of theſe, 542 are on the Eaſtern ſhore.
- ↑ Of theſe, 22,616 are eaſtward of the meridian of
northof the Great Kanhaway.
- ↑ To bid, to ſet, was the ancient legiſlative word of the Engliſh. Ll. Hlotharii & Edrici. Ll. Inae, Ll. Eawerdi. Ll. Aathelſtani.
- ↑ Bro. abr. Corporations. 31. 34. Hakewell, 93.
- ↑ Puff. Off. hom. l. 2. c. 6. §. 12.
- ↑ June 4, 1781.