with Notes of Reference (1803)
St. George Tucker
Of the Constitution of Virginia
THE constitution of this commonwealth was formed at a time, when the spirit of equality was at its utmost height, and under circumstances which contributed greatly to augment that natural jealousy of executive power, to which all free states are prone, and for which, the convention then saw the most just and cogent reasons. The ancient models of republican governments could not be perfectly adapted to the situation, circumstances and extent of the country, nor to the genius of its inhabitants. The peaceable character of an agricultural people did not incline them to adopt the martial institutions of the Roman or Spartan republics: nor did the extent of their country, or the small number of its inhabitants in proportion to that extent, invite or permit them to embrace those of the Athenian or other populous republics of Greece. An habitual predilection for what has been usually styled the democratic part of the British constitution, prompted an experiment, to graft a scion from that branch of the government of their parent state, upon a pure republican stock: and to ensure it’s vigor and success, they carefully lopped off from it every germ of monarchy, and feudal aristocracy. The framers of the constitution were well aware, that the splendor of a government is one thing, and the happiness of the people another; that if not wholly incompatible, and in direct opposition, they are often in an inverse proportion to each other. The page of history contains but few annals of nations, whose distinguished happiness it has been to enjoy a state of peace. The attention of the historian is not attracted by the calm scenes of peace and tranquillity, in which, only, is real happiness to be found: these are deemed unworthy of recording and transmitting to future ages, whilst scenes of tumult, oppression, bloodshed, and desolation, gratify both the historian and the eager curiosity of his reader, at the expense of millions of victims to ambition, tyranny, treachery, and revenge, too often disguised and even concentrated, under the specious epithet of glory. From a just estimate of these things, the convention drew this important conclusion. “That government, is, or ought to be instituted for the common benefit, protection and security of the people; and that form of government is best, which is capable of producing the greatest degree of happiness and safety.”1 Proceeding upon this maxim as the foundation of that government they were about to establish, they produced a constitution, from which, whatever might tend to gratify the ambition of the governors, was utterly banished, to make room for the more important considerations of the peace, happiness, and security of the people to be governed. They had learned from the history and example of their mother country, that limitations of the executive authority were nugatory, if that authority be united with the legislative, or if the judiciary be subservient to it or united with either. Hence they made this deduction: “That the legislative, executive, and judiciary departments should be separate and distinct, so that neither exercise the powers properly belonging to the other; nor any one exercise more than one of them at the same time.”2 The colonial constitution had been particularly defective and exceptionable in this respect. The governor and the members of the colonial council, who were appointed and held their places at the pleasure of the crown, united in their own persons the executive authority of the colony, two branches of the legislature thereof, and the character of judges of the highest court of criminal and civil jurisdiction, both at law and in equity; and moreover in ecclesiastical causes, also: a concentration of power capable of producing the utmost extremity of civil oppression and tyranny. The influence of the executive department in England, over the other branches of the legislature, as well as the subordinate parts of government, and the formidable strides and encroachments made by it, under the name of PREROGATIVE, induced them further to declare, “That the governor of this commonwealth shall not, under any pretense, exercise any power or prerogative, by virtue of any law, statute, or custom of England.”3 But “that he shall, with the advice of the council of state, exercise the executive powers of government according to the laws of the commonwealth.”4 This declaration instantly leveled the barriers of distinction between the legislative authority, and that of the executive, rendering the former completely paramount to the latter; except, perhaps, in one or two cases, accidentally specified in the constitution. The want of a proper barrier between the several powers of the government as contemplated in the theory of the constitution, has left both the executive and judiciary departments, in the opinion of Mr. Jefferson,5 dependent on the legislative for their subsistence in office, and some of them, for their continuance in it. “If, therefore,” in his opinion, “the legislative 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 proceedings, in the form of an act of assembly, which will render them obligatory on the other branches.”6 This, as it relates to the executive department, is practically, and perhaps constitutionally, true. But more than one instance might be adduced where the judiciary department have doubted, or denied the obligation of an act of the legislature, because contrary to the constitution.7 Still, however, I am of opinion, with him, that the constitution has not provided those barriers which may be deemed indispensably necessary to prevent the several departments from transcending their legal limits, without being effectually checked and restrained by the others. And, with him, I very cordially lament the omission, and deprecate the ill consequences which at no very remote period may result from it. Those which have already manifested themselves, as arising from that source, some of which he has pointed out, as happening within his own observation and experience,8 are of such a magnitude, as to render it a matter of serious inquiry and concern to all who advocate the principle of the separation of the several departments of government, whether we can be safe until the proper barriers are provided. The abstract terms of legislative, executive and judiciary powers, do not always apply with sufficient precision to enable us to determine to what department any particular case may be most peculiarly appropriate. The legislative power may generally be well enough understood to mean, the power of making, framing and enacting general rules for the government of any community; the judiciary power, may be understood to mean the power of making the application of those rules to all cases of litigation. But the executive power seems not altogether susceptible of so definite a distinction, as the latter, and as its powers in all the governments of Europe, partake of the legislative character, and are called upon to carry into effect those of the judiciary9 likewise, it might be very difficult to ascertain its constitutional limits, or those of the legislature, with respect to it. In the intercourse with foreign nations, as has been remarked elsewhere, the distinction between such as may be strictly legislative or strictly executive is not altogether obvious. Is a declaration of war, or a treaty of peace, amity or commerce, the province of the one or the other? In England the legislature has nothing to do with these measures: in the federal constitution, the first has been arranged under the legislative department, the second under that of the executive. It required a specific enumeration of the rights and duties of each of these branches of the federal government, to ascertain whose province it is to act in these cases: without such an enumeration, there might have been a perpetual contest between them; and no doubt arguments sufficiently specious and numerous might have been produced in favor of the pretensions of both; and very justly is it remarked by Mr. Jefferson, that the direction of the executive of Virginia during the whole time of the session of the legislature has become habitual and familiar to the latter.10 True it is, that the inconveniences of this conduct, in times of profound peace and tranquility, are neither so obvious, nor so numerous or dangerous, as in times of war or difficulty; but it should be remembered that when such times arrive, there is little leisure for reformation, however requisite. It is also matter of consolation, that even in such times, the powers vested in the federal government, may in a great measure shelter us from the storms to which the very great defects in our state constitution must inevitably have exposed us, but for the many advantageous arrangements which have been made in the constitution of the United States. If by any fatal event the federal union should happen to be dissolved, or broken, there is not a state in the confederacy, that would sooner feel the total inadequacy of its constitution, to support its liberty and independence, as a state, than Virginia.
But however unsuccessful the convention may have been in these respects, of which we have been speaking, the constitution will appear, upon a candid investigation, to be fully commensurate in times of peace, to the security and protection of the citizen from domestic violence or oppression either in his person, or his property. Still, however, we must agree with the enlightened author of the Notes on Virginia, in most of his strictures on its defects, and in a cordial wish that they may be radically cured: and this more especially as the opinion of the same gentleman “that the ordinary legislature may alter the constitution itself,”11 has occasioned a great number of his fellow-citizens to doubt the validity of that constitution under which they live. An opinion, however, in which the author of these pages cannot concur, for reasons which he has more than once been constrained publicly to deliver, on the most solemn occasions; some of which he will take the liberty of repeating in this place.
Not only the colony of Virginia, but the whole American continent had witnessed, for a series of years, the rapid strides of usurpation and oppression on the part of Great Britain, when the commencement of hostilities on the nineteenth of April, and their repetition on the 17th of June, 1775, left no possible doubt of the full determination of the government of that nation to reduce the American colonies to unconditional obedience, by the sword. The governor of this colony had withdrawn himself from the seat of government, and was preparing to commence the like scenes here, when the American congress on the sixth of July in the same year, published to the world a declaration, setting forth the causes and necessity of their taking up arms; in which they declared, “that exerting the utmost energy of those powers, which their beneficent creator had graciously bestowed upon them, the arms which they had been by their enemies compelled to assume, they would in defiance of every hazard, with unabating firmness and perseverance, employ for the preservation of their liberties; being with one mind resolved to die freemen rather than to live slaves.”
True it is that in this declaration they disavowed any design of separating from Great Britain, and establishing independent states. But the decided tone of that declaration, and the no less determined conduct and resolutions of the British government, seconded by repeated aggressions in every part of the colonies, and by an act of parliament and royal proclamation declaring the colonies in a state of rebellion, authorizing the seizure of the persons and property of their inhabitants, and putting them out of the king’s protection, left no room to doubt that the appeal to arms thus made on both sides, must very shortly drive the colonies to submission or a declaration of independence. Every one regarded the former of these alternatives with disdain; and long before the approach of the period for electing members to the succeeding convention to be held in May, all hope of reconciliation was swallowed up in the torrents of blood, which had already flowed on both sides: formidable preparations were making on both sides for a vigorous prosecution of the war, and the most awful denunciations were continually repeated on the part of our enraged enemies: anxiety and apprehension invaded every breast; every public assembly, every religious congregation, every scene of social intercourse or of domestic privacy and retirement was a scene of deliberation on the public calamity, and impending danger. The question of independence was discussed In the public newspapers and at every public meeting; and the sense of their respective constituents must have been generally known to the members of the convention, before the period of assembling. Instructions to them were in many instances published in the newspapers, containing an explicit declaration of the wishes of the people, that independence, their last hope and refuge should be immediately declared. The public mind, if we may judge from all these circumstances, was fully prepared for the important event that was approaching. Former conventions were appointed not for any special purpose but “to adopt such modes of consulting and providing for the general safety as might seem most conducive to that great end;”12 that which met in May, 1776, might be considered as already instructed in the course they were to pursue.13 Few wished and none expected that our subordination to the crown of Great Britain could exist any longer than was absolutely necessary to collect the sense of the people upon the subject; and the unanimous vote of the convention upon the question at so early a period of the session, proves beyond all doubt, that the members must have left their respective counties fully prepared to give the assent of their constituents to a final separation from their mother country. But a power to demolish the fabric of government then existing, without authority to erect a new one could not be presumed. Though the chains of dependence must be broken, the bonds of society and civil government must yet be preserved; and a new organization of the powers of government, must instantly take place to prevent those evils which the absence of government must inevitably produce. If the wants and fears of individuals be the first and most cogent motives which impel men to form civil government, never was there an occasion when those motives could have a more powerful operation; since the moment of disunion would certainty be the moment of destruction. It would therefore have been absurdity in the extreme, in the convention, to suppose it to be the sense of their constituents, that they might cast off their dependence upon Great Britain, and annihilate the government exercised under its authority, without establishing another in its stead; thus leaving the people wholly without government, at the moment when the utmost exertions of a regular and well organized government, were required for the preservation, not of their liberties only, but their lives also, from the hand of the executioner. The constitution of the state must therefore, be considered as the act of the people, equally as the dissolution of the former government; both being not only in form, but in effect, from the nature and necessity of the case, one and the same act. To question the validity of the one is to deny that of the other; the powers necessary to both being the same, and the one a consequence unavoidably and indispensably flowing from the other.
But this subject deserves to be considered in another light: it will be remembered by all who are conversant with the use and progress of the late glorious revolution; that the measures which led to its final consummation; and which for the most part originated in the legal and constitutional assemblies of the several colonies, made but a small progress in those channels, particularly in this state. The dissolution of the constitutional assemblies by the governors appointed by the crown, obliged the people to resort to other modes of deliberating for the common good. Hence the first introduction of conventions; bodies neither authorized by nor known to the constitutional government; bodies, on the contrary, which the officers of the constitutional go-governments considered as altogether illegal, and wanted not the inclination to treat as such. Nevertheless, they met, deliberated, and resolved, for the common good. They were the people assembled by their deputies, not a legal, or constitutional assembly or part of the government as then organized. Hence they were not, nor could they be deemed the ordinary legislature; that body being composed of the governor, appointed by the crown, the council, appointed in the same manner, and the burgesses chosen by the people, sitting in different chambers, in different characters, and under different authorities; whilst the convention was composed of a single body, having neither the character of a governor, council, or even a legitimate representative among them. It consisted of the people themselves assembled by their delegates, to whom the care of the common weal was unboundedly confided. The ordinance under which the last convention was chosen,14 declaring, “That by the unhappy differences subsisting between Great Britain and this colony, the usual meetings of the general assembly, deliberations on the situation of the country, and making provision for the exigencies of government in a constitutional way, are altogether obstructed; for which reason it has become indispensably necessary for the oppressed people of this country, at a crisis so alarming, to adopt such other mode of consulting and providing for the general safety as may seem most conducive to that great end.” This is the voice of the people looking forward to scenes of danger, and to a crisis pregnant with the fate of their country. THE SAFETY OF THE PEOPLE, the supreme law of nations and of society, was thus confided without bounds or limits, to the wisdom, patriotism and integrity of the convention.
The distinction between the convention and the ordinary legislature, may be still further proved, from the different manner in which they were assembled. The power of convening the legal assemblies, on the ordinary and constitutional legislature of the colony resided wholly in the executive. The members of the legislature could neither be chosen, without writs issued by its authority, nor assemble when chosen, but in obedience to a summons from the same authority. They might be prorogued, or dissolved, at the pleasure of the representative of the crown, who possessed a negative upon all their proceedings. Conventions, on the contrary, were chosen and assembled either in pursuance of recommendations from their own body, or from the congress, or by the discretion and common consent of the people. It was equally beyond the power of the constitutional executive to dissolve them, as it was against his interest or inclination to convene them. They were held even whilst a legal assembly existed. Witness the convention held in Richmond in March, 1775, after which period the constitutional assembly was convened by Lord Dunmore, and met and continued their session several weeks in Williamsburg. This assembly adjourned to some day in the following October; from thence to some day in March; and then to the sixth day of May, 1776, when forty five members being a quorum of the house to proceed to business, met pursuant to their last adjournment: “But it being their opinion, that the people could not now be legally represented according to the ancient constitution which had been subvened by the king, lords, and commons of Great Britain, and consequently dissolved, they unanimously dissolved themselves accordingly.”15 No other legal assembly was ever afterwards chosen or convened under the authority of the British government.
The convention then was not the ordinary legislature of Virginia: nor could it be regarded in that light; for two ordinary legislatures existing in the same state, at the same time, with equal or concurrent powers, is a phenomenon which it is believed the people of this country never intended to exhibit. The convention was either nothing at all, or something superior to an ordinary legislature. It was the great body of the people assembled in the persons of their deputies, to consult for the common good, and to act IN ALL THINGS FOR THE SAFETY OF THE PEOPLE.
This venerable body assembled in Williamsburg, on the first Monday in May, 1776. The president, in an address from the chair, observed, “that they were assembled at a time truly critical, when subjects of the most important and interesting nature, required their serious attention. That the administration of justice and almost all the powers of government had been suspended for near two years, and that it became them to reflect whether we could longer sustain the great struggle we were making in that situation.”
On the 15th day of May, (a day ever to be remembered in Virginia), the convention made the following solemn declaration, and came to several resolutions thereupon:
|“Forasmuch as all the endeavors of the united colonies, by the most decent representations and petitions to the king and parliament of Great Britain to restore peace and security to America under the British government and a re-union with that people upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive administration, increased insult, oppression, and a vigorous attempt to affect our total destruction. By a late act of parliament all the colonies are declared to be in rebellion, and out of the protection of the British crown, our properties are subjected to confiscation, our people when captivated, compelled to join in the murder and plunder of their relations, and countrymen, and all former rapines and oppression of Americans declared legal and just; fleets and armies are raised, and the aid of foreign troops engaged to assist their destructive purposes. The kings representative in this colony, has not only withheld the powers of government from operating for our safety, but having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves by every artifice to resort to him, and training and employing them against their masters. In this state of extreme danger we have no alternative left, but abject submission to the will of those overbearing tyrants, or a TOTAL SEPARATION, from the crown and government of Great Britain, uniting and exerting the strength of all America for defense and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the searcher of hearts for the sincerity of former declarations, expressing our desire to preserve the connection with that nation, and that we are driven from that inclination by their wicked councils and the eternal laws of self-preservation;|
|“Resolved unanimously; that the delegates appointed to represent this colony in 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: and that they give the assent of this colony to such declaration and to whatever measures may be thought proper and necessary by congress, for forming foreign alliance, and a confederacy of the colonies at such time and in such manner, as to them shall seem best; provided that the power of forming governments for, and the regulations of the internal concerns of each colony, be left to the respective colonial legislatures.|
|“Resolved unanimously; that a committee 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.”16|
A committee was thereupon immediately appointed, consisting of twenty-eight members, by which drafts were accordingly prepared, reported and discussed by the convention. The bill of rights passed on the twelfth of June, and the constitution UNANIMOUSLY on the 29th, of the same month. A governor for the commonwealth, and the members of the privy council were appointed on the same day, pursuant to the provisions made in the last article of the constitution. On the fifth day of July, (the day after the declaration of independence was agreed to, in the general congress at Philadelphia) the governor and members of the privy council took their respective oaths of office, as prescribed by an ordinance passed on the fourth day of the same month, and then the convention adjourned; leaving the government of the commonwealth of Virginia, as an independent state, completely organized, as such.17
From these circumstances, it must be evident that the constitution of Virginia, was neither the momentary production of Violent or of factious men, but the result of more than six weeks deliberate consultation, and consideration, among men well informed of the sentiments and wishes of their respective constituents. It may be regarded as the unanimous voice of the people, proclaiming to the world their resolution to be free; and to institute such a government, as in their opinion was most likely to produce peace, happiness, and safety, both to the community and to the individual. “The revolution of 1688, says Judge Blackstone,18 was not a defeasance of the succession and a new limitation of the crown, by the king and two houses of parliament; it was the act of the nation alone, upon a conviction that there was no king in being.” And the ingenious Mackintosh remarks, “that the national assembly of France was assembled as an ordinary legislature under existing laws. They were transformed by events into a national convention, and vested with power to organize a new government. It is in vain to demand the legal instrument that changed their constitution and extended their powers. Great revolutions are too immense for technical formality. All the sanction that can be hoped from such events, is the voice of the people, however informally and irregularly expressed.”19 Our case was much stronger than either of those mentioned by these writers. The convention parliament assembled in England in 1688, bore some resemblance, at least, to the ordinary legislature of that kingdom: and the national assembly of France was constitutionally assembled under the authority of the government which it subverted. The convention of Virginia, had not the shadow of a legal, or, constitutional form about it. It derived its existence and authority from a higher source; a power which can supersede all law, dispense with all forms; and whenever it pleases annul one constitution; and set up another; namely the people in their sovereign, unlimited and unlimitable authority and capacity.
If any arguments were necessary to prove, that the convention were fully satisfied, that they complied with the wishes and intentions of their constituents, and that this was in fact the case, we need only advert to the circumstance of their unanimous vote given for a separation and the establishment of a new form of government, after a debate of two days, only, on the eighth day of their session; and a similar vote given six weeks after, upon the question whether the present constitution should pass. If the people had not approved of the measure, would not addresses or instructions have been poured in upon the convention from all parts of the colony? Most assuredly they would. The unanimous vote in favor of the constitution is the most unequivocal proof that the people not only saw and approved what was doing, but had, however informally, made known their sentiments to their deputies before they left their respective counties. That the convention intended not a mere temporary form of government, but one as permanent as the republic they were engaged in establishing, may be collected from several parts of the instrument itself, but more especially from the twenty-first article, in the following words: “The territories contained within the charters erecting the colonies of Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and forever confirmed to the people of those colonies, respectively, with all the rights of property, jurisdiction and government and all other rights whatsoever which might at any time heretofore have been claimed by Virginia, except the free navigation and use of the rivers Potomac and Pohomoke, with the property of the Virginia shores or strands, bordering on either of the said rivers, and all improvements which have been or shall be made thereon. The western and northern extent of Virginia shall, in all other respects, stand as fixed by the charter of king James the first, in the year 1609, and by the public treaty of peace between the courts of Great-Britain and France in the year 1763, unless by the act of the legislature one or more territories shall hereafter be laid off, and GOVERNMENTS ESTABLISHED westward of the Allegheny mountains.”
To what I have said, I shall subjoin a part of the argument of Judge Nelson, as delivered upon this question in the general court, November 16,1793, in the case of Kamper against Hawkins.
|“A constitution is that by which the powers of government are limited. It is to the governor, or rather to the departments of government, what a law is to individuals nay it is not only a rule of action to the branches of government, but it is that from which their existence flows, and by which their powers (or portions of the right to govern) which may have been committed to them are prescribed. It is their commission nay it is their creator.|
|“The present question is, whether an act of the legislature contrary to it be valid.|
|“This is the paper20 by which the delegates and representatives of the people, viewing with concern the deplorable situation to which this country must have been reduced, unless some regular, adequate mode of civil polity had been speedily adopted, did ordain and declare the future form of government to be as there set forth.|
|“This is the paper which divides the government into three distinct departments, with one exception.|
|“This is the very paper under which there are two branches of legislature now assembled.|
|“This is the very paper under which they are to meet once a year, or oftener.|
|“This is the very paper which gives them the stile of the GENERAL ASSEMBLY of VIRGINIA.|
|“This is the very paper that calls one the house of delegates, and the other the senate.|
|“This is the very paper which declares that the former shall consist of two representatives from each county, chosen by the freeholders; which fixes the number of the senators to twenty-four; which defines the number which shall compose a house of senate, under which the state is to be divided into twenty-four districts; which declares that each county shall vote for a senator, who, besides other qualifications, shall be twenty-five years of age; that a comparison of the polls shall be made by the sheriffs, who are to return the person having the greatest number of votes; that a certain number are to be displaced in rotation; that writs may issue from each house for supplying vacancies; and,|
|“That all laws shall originate in the house of delegates, subject to amendment by the senate, except money bills.|
|“I ask then, whether the legislature do not sit under this constitution?|
|“The answer in the affirmative, to me is inevitable.|
|“But it may be objected, that although the legislature would be bound by a fundamental regulation, made by a convention or other body, delegated expressly for such a purpose, the body who formed this, not having been thus specially appointed, this act possesses not sufficient sanctity, but is an act, equal only to those of the ordinary legislature, because some acts passed in the same session are confessedly so.|
|“Here let it be remembered, that the question is not whether the people can change it; but whether the legislature can do so?|
|“The people have received this as a constitution. The magistrates and officers, down to a constable, (for even the mode of his appointment is directed therein) have been appointed under it.|
|“The people have felt it’s operation and acquiesced: it is confessedly their assent which gives validity to a constitution.|
|“Who then can change it?|
|“I answer the people alone.|
|“But it has been supposed that the legislature can do this.|
|“To decide this question, I have already stated that the legislature derive their existence from the constitution.|
|“And can the legislature impugn that character, under which they claim to be a legislature? I apprehend not.”21|
To my understanding and judgment nothing can be more conclusive than this argument. I shall therefore here conclude the subject, with this remark; that both the judiciary and the legislature have on several occasions recognized the authority of the constitution as such, on, several solemn occasions:22 therefore, until it shall be altered in some authoritative and constitutional way, we are bound to respect it, as the immediate act of the people, and as such obligatory not only upon the other branches of the government, but upon the legislature also. Quitting therefore the unpleasant theme of inquiring into unfounded encroachments of one of the departments of government upon the other, I shall now proceed to some examination of their several constitutions, rights and duties.
I. The legislative department consists of two distinct branches; the house of delegates and the senate; these together constitute the general assembly of Virginia, without any admixture of the consent or assent of the executive, as before the revolution, to any of their acts.
1. The house of delegates consists of two representatives, chosen for each county, annually, of such men as actually reside in and are freeholders of the same, or duly qualified according to law; and one representative for the city of Williamsburg, and one for the borough of Norfolk, and a representative for each of such other cities and boroughs as may be allowed particular representation by the legislature; but when a city or borough shall so decrease as that the number of persons having the right of suffrage shall, for seven years successively, be less than half the number of votes in some one county, it shall thenceforth cease to send a representative to the assembly.23
The right of suffrage, in the election of members of both houses, is to remain as then exercised,24 art. 7. This clause has occasioned some doubt, and probably a violation of the constitution. The ordinance of July, 1775, c. 4. under which the members of the convention were chosen, and to which they probably meant to refer, declares, that the freeholders of every county, who are by law properly qualified to vote for burgesses, shall have the privilege of choosing annually two of the most fit and able men being freeholders of such county respectively; and the freeholders of the several and respective corporations, and town of James City, and others by law qualified to vote for a citizen or burgess, shall have the liberty of electing one delegate; and the landholders of the district of West Augusta shall be considered as a distinct county, and have the liberty of sending two delegates to represent them in general convention. And inasmuch as the inhabitants of the county of Fincastle, and district of West Augusta, although long possessed of their lands under surveys, entries, or orders of council, have few of them obtained patents for the same which have been obstructed without any default in them: it is further ordained that every free white man, who at the time of elections for delegates in the said county or district, shall have been for one year preceding, in possession of twenty-five acres of land, with a house or plantation thereon, or one hundred acres of land, without a house or plantation, in such county or district, claiming an estate for life at least in his own right, or in right of his wife, shall have a vote, or be capable of being chosen a delegate, although no legal title in the land shall have been conveyed to such possessor: and that no person shall be permitted to vote at any election who is not qualified so to do.25
As this ordinance confines the right of suffrage to such persons as were by law qualified to vote for burgesses, we must consult the laws then in force to ascertain and determine this right.
The act of 1705, c. 1. §. 1. and 6. declares that the freeholders of every county that then was, or thereafter should be in Virginia, shall forever have the privilege and liberty of electing two of the most fit and able men of their county, respectively, to represent them in the general assembly; and that every person having an estate real for his own life or the life of another, shall be accounted a freeholder within the meaning of that act. And by the act of 1723. c. 4. §. 23. (Edi. 1733), It is enacted and declared that no free negro, mulatto, or Indian whatsoever, shall thereafter have any vote at the election of burgesses, or any other election whatsoever.
The act of 1735. c. 1. after reciting, that divers frauds had of late been practiced to create and multiply votes, by making leases of small and inconsiderable parcels of land, upon feigned considerations, and by sub-dividing lots of ground in towns in prejudice of the rights of true freeholders, declares that no person whatsoever shall thereafter have a right to vote at any election for any county, who has not an estate of freehold, or other greater estate, in one hundred acres of land, at least, if no settlement be made upon it, or twenty-five acres, with a house or plantation in his possession or in the possession of his tenant for years, in the same county: but if any person shall have such an estate in one hundred acres of land uninhabited, lying in two or more counties, he shall have the right to vote in that county only where the greater quantity may lie, although the same do not amount to one hundred acres, in either county: And that all estates and conveyances whatsoever, made to any person in any fraudulent or collusive manner, on purpose to qualify him to vote, shall be null and void to all intents and purposes whatsoever; and every person making or executing, devising or preparing such conveyance; or by color thereof, voting at any election, is subject to a penalty of forty pounds: And that no person shall vote at any election in respect, or in right of any lands or tenements whereof he has not been in possession one whole year, next before the teste of the writ for such election, unless the same came to him within that time, by descent, marriage, marriage settlement, or devise: But that nothing in that act should be construed to hinder any person to vote at such elections, in right of any houses, lands, or tenements in any city or town laid out and established by act of assembly, so as such person be a freeholder in any house and lot, or a house and part of a lot: but where the interest in any such house and lot or part of a lot is divided among several persons, no more than one single voice shall be admitted for the same. And where lands are held by several joint-tenants or tenants in common, no more than one single voice shall be admitted in right thereof, unless the quantity be sufficient to allot to each, one hundred acres at least; if the same be uninhabited, or twenty-five acres with a house and plantation thereon: and the person offering to vote, if required, must swear to his qualification accordingly before he is admitted to poll.
The qualifications of electors for a burgess for the city of Williamsburg as fixed by its charter, and by the act of 1742, ch. 2,26 are, that the voter shall have an estate of freehold in one whole lot of land within the said city; and that there be standing upon the same a house of such dimensions as is required by law for saving such lot, in tenantable repair, at the time of giving the vote; that in case of joint-tenants, etc. no more than one vote shall be given: or such voter must have a visible estate of fifty pounds current money, at the least, and have actually resided therein, twelve months next before the election, or have served five years as an apprentice to some trade within the city, have obtained a certificate thereof from the court of hustings; and also be an inhabitant and house-keeper therein at the time of giving his vote: and no servant by indenture or otherwise shall be allowed to give any vote in right of being an inhabitant. The qualifications of voters in the borough of Norfolk, as fixed also by its charter, and by the act of 1752, c. 7. are the same in all respects, except that a freehold estate in half a lot of land, with a house thereon of like dimensions, is declared a sufficient qualification.27
Upon this footing did the right of suffrage stand at the time of establishing the constitution, and upon this footing, I presume, it ought now to stand. The act of 1769, c. 1. by which it was intended to reduce the qualifications of electors in right of unsettled lands to fifty acres, instead of one hundred; and the possession thereof, to avoid the presumption of fraud, to six months instead of one year, was suspended by a clause thereof, until the royal assent should be obtained:28 but it never was obtained, so that we may be authorized in presuming that the several antecedent acts before mentioned, were in full force when the constitution was adopted. Whether from oversight or intention the act of 1785. c. 55. (Edi. 1794. c. 17,) pursues the act of 1769. c. 1. in both respects, so that it seems worthy of the attention and inquiry of the legislature, whether the elections of members to the general assembly, may not be authorized and conducted in a manner contrary to the constitution.
The author of the Notes on Virginia observes “that a 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 militia or of the tax gatherers.”29 I am strongly inclined to doubt the justice of this conjecture, for such I presume it to be, as no accurate comparison can probably be made, between the number of freeholders, and of those upon the rolls of the militia, or the tax-gatherers’ books. Except on some great occasion where a contest may happen, between influential persons, the whole body of freeholders in a county, rarely, perhaps, never, attend. The returns are not made to the clerk of the house of delegates so as to enable one readily to ascertain their number. Free negroes and mulattoes are excluded from elections; they are now excluded from the militia rolls, and very few of their names appear upon the tax-gatherers’ books. The adult sons of freeholders who are still under the age of twenty-one years, are indeed subject to be called upon in the militia, but their names appear not upon the tax-gatherers’ books. The overseers and managers upon the plantations of more opulent persons, were formerly excluded from the militia: now indeed they are liable to be called upon for that service; but their numbers of late years have greatly diminished, and not a few of them are men who possess freeholds of their own. Tenants for years, or at will, are rarely to be met with, except within the precincts of the Northern Neck; and even there, those who occupy rented lands, have generally leases for term of lives, instead of years. Very few persons over the age of twenty-one years, remain long unmarried in Virginia; and the acquisition of a wife is ordinarily attended with that of a farm, sufficient to entitle the owner to a vote. In the western part of the state, overseers are almost unknown, and even below the Blue Ridge, there are probably ten farmers that manage their own estates for one that employs an overseer. I am therefore entirely at a loss to conjecture upon what grounds the author founds his opinion. His next objection is more easily understood.
“Among those who share the representation, the shares are very unequal. Thus the county of Warwick with only one hundred fighting men, has an equal representation with the county of Loudon, which has 1746, so that every man in Warwick has as much influence in the government as seventeen men in Loudon.” Warwick, however, pays four hundred and eleven dollars, yearly, into the treasury, whilst the counties of Monongalia, Harrison, Randolph, and Lee, pay four hundred and one dollars and twenty-six cents only to the public revenue. If Loudon should complain of the undue influence of the number of men in Warwick, these counties, at least cannot complain of its exemption from taxes, since they have four times as many representatives, and pay less into the treasury than Warwick, or even than the little depopulated city of Williamsburg.30 There is not then such a disparity between benefits and burdens, in the different parts of the state, perhaps, as might at first have been conjectured from the instance produced; nor does that disparity arise so much from the excess of representation, in the counties lying between the sea-coast and the falls of the rivers, as in the excess in the counties in the western part of the state.
The fairest way of adjusting the proportions of benefits and burdens in the state, seems to be by combining pecuniary ability and burdens with such as are merely personal. In a peaceable commonwealth, pecuniary burdens are likely to be the greatest. In time of peace there are no personal burdens beyond the ordinary repairs of roads or other trifling labor; the whole burden of government is altogether pecuniary. In time of war personal duties are required; but pecuniary burdens must increase as they increase, and often be continued after they cease. Witness the debt contracted during the revolutionary war, which we are still paying after twenty years of peace, and may continue to pay for a century, or perhaps forever. Besides, if they who pay nothing, or very little, are entrusted with the imposition of burdens, of which they are to feel no part, there is too much reason, from the experience of all ages and countries, to apprehend that they may be regardless of the burden they impose; especially if the question should relate to the compensation to be made to themselves, or their own immediate constituents, similarly circumstanced for their personal services. A scale of representation adjusted according to the number of fighting men, only, (the idea which suggests itself from the view of Mr. Jefferson’s table)31 would, probably be one of the most exceptionable that could be adopted; since in peace they would be exempted from all burdens, whatsoever, and in war, might throw the burden both of men and money, upon the weaker part, of the state, which must consequently have the minority in the public councils. Is it not from a consciousness of the justice of this principle, that Virginia with all her sister states in the southern part of the union, have insisted, and obtained, that their representation should not be fixed in proportion to the fighting men in the union, (which would have enabled the northern states to give law to the confederacy,) but according to a census differing very widely from such a scale of representation? and if the principle be sound in the one case, what is it that renders it less so, in the other?
Since the period when the notes on Virginia were written the act for equalizing the land tax, (Oct. 1782, c. 19. edi. 1785, p. 177,) in the several parts of the state was passed, and carried into effect; and is now the invariable standard by which the landholders in different parts of the state are taxed. The counties of Brunswick, Amelia, Cumberland, Goochland, Hanover, Spottsylvania, Stafford, Prince William, and Fairfax, and all the counties eastward thereof, compose the first class, and the lands therein are rated at a general average often shillings per acre: the counties westward of these and below the blue ridge of mountains (except Pittsylvania and Henry,) together with the rich and fertile counties of Frederick, Berkeley, and Jefferson, compose the second class, and the lands therein are rated at a general average of seven shillings and sixpence per acre, only, although the lands in that class in general, are confessedly superior to those, in general, in the first. The counties of Pittsylvania, Henry, Patrick, Franklin, Botetourt, Rockbridge, Augusta, Rockingham, Shenandoah, Hardy and Hampshire, compose the third class, and the lands therein are rated at a general average of five shillings and sixpence per acre; the counties westward of these, now amounting to eighteen in number, compose the fourth class, and the lands therein, are rated at a general average of three shillings per acre. Whenever, therefore, a landholder in the western parts of the state pays three shillings, or one nearer the center pays five shillings and sixpence, or seven shillings and sixpence land tax, the landholder in the first class pays ten shillings, for the same quantity of land; this class moreover pays near three fifths of the slave tax; an inspection of the following table will show the number of counties in each class. Paying an equal land tax, the counties in each class, respectively, may be considered as having so far a common interest; those which have few or no slaves among them, and those which have a great many, may likewise be supposed to have a common interest with each other, according as either of these circumstances preponderate. The number of slaves in the third and fourth classes were no more than 21,738, when the last census was taken, whilst those in the first and second classes amounted to 324,058. Lands and slaves have ever been the subjects of the productive revenues of the state, and will probably so remain. In the first class there were 196,542 slaves, at the time of the first census: the number by the late census appears to be 213,075. This proportion of the state must therefore always sustain the great load of pecuniary burdens imposed in the state. An inspection of the following table, formed from authentic documents,32 will show where the inequality of representation in the state legislature really falls at this day. The counties are divided into classes, according to the act for equalizing the land tax; first class paying ten shillings per acre land tax when the second pays seven shillings and sixpence; the third five shillings and sixpence, and the fourth three shillings, as before mentioned.
|Classes||Number of counties||Actual number
|Free white males between 16 and 45 years||Total taxes paid in 1794, in dollars||Slaves||Proportlons, if a scale of|
representation be made
|by fighting men only||by taxes only||by a combi-|
nation of both
|2nd class||20 td>||40||31,601||39,020||110,983||60||56||58|
From this table it appears, that if it be admitted that a proportion combined of the personal and pecuniary burdens borne by the several parts of the state, be considered as the proper and just scale of representation, the first class has numerically its proper number at present, whilst the fourth class has more than double its proper proportion; the second class by such an arrangement would gain nearly half as many more than it now has; and the third class one member, if the fraction be given to the fourth class; or two, if the fraction be given to the third.33
Since an inequality in the representation actually exists, it is very fortunate that it falls upon so large a portion of the middle part of the state; the weight of that portion is sufficient on any occasion, where local and party contests may prevail between the representatives from the eastern and western extremes, to turn the scale against either which may show a disposition to injure or oppress the other.
Here, I must beg leave to make a short digression, upon the subject of the last arrangement of the counties into districts to choose representatives to congress. As congress possesses the power of taxation even more extensively than the state legislature, it might have been expected that some regard would have been paid to the quota of taxes paid in the several districts, since in case of direct taxes being imposed by congress, it is not improbable this operation would coincide with that of the state taxes: but so little attention, if any, did the general assembly pay to this consideration, that the district composed of the counties of Monongalia, Brooke, Ohio, Harrison, Wood, and Randolph, having 4427 militia only, and paying 593 dollars 57 cents taxes only, sends a member to congress as well as the counties of Loudon, Fairfax, and Prince William, which have 5505 militia, and pays 6770 dollars taxes to the state. The inequality is still greater in some other districts.34
Mr. Jefferson’s next complaint against the constitution of the house of delegates in Virginia, is, “that it exercises the power of determining the quorum of its own body;” an objection in which I most cordially agree with him. I am even of opinion, that not less than two-thirds of either house should constitute a quorum to do business; and that the assent of the majority of the whole number of delegates, and of the whole number of senators, should be required to the final passage of any law, though a majority of the members present might be sufficient for its passage through the preparatory stages. Every act of the legislature would then be the act of a majority of all the representatives of the people, whereas, at present, one more than the fourth part of either house may be sufficient to pass a law. Thus, forty-eight members in the house of delegates, and seven in the senate, may now give law to a state whose legislature consists of two hundred and eleven members. Such a regulation would be a great security against hasty and ill advised, or ill digested laws, and would give stability to such as may be made; nor could there be even a speculative doubt, in such a case, that the will of the majority of the people had fairly prevailed.
2. The senate consists of twenty-four members, of whom thirteen are necessary to constitute a house to proceed to business, for whose elections the different counties are divided into twenty-four districts,35 and each county of the respective districts once in four years, in rotation, at the time of the election of its delegates must also vote for one senator, who is actually a resident and a freeholder within the district, or duly qualified according to law, and is upwards of twenty-five years of age; the sheriffs of the several counties are to meet within five days, compare their respective polls, and return the person, having the greatest number of votes: The districts being divided into four classes, by lot, one of them is annually displaced, in rotation, and the vacancies are supplied by new elections.36
According to the table given by Mr. Jefferson,37 one half of the number of senators are chosen from the counties, between the sea-coasts, and the falls of the rivers: one third of them between the falls of the rivers, and the blue-ridge of mountains; one twelfth between the blue-ridge and the Allegheny; and the remaining twelfth part between the Allegheny and the Ohio. This disproportion is daily increasing, as the population of the western counties advances, and whenever a new constitution for the state is formed, it ought to be corrected. No practical evil, it is believed, has hitherto resulted from it; a single instance will probably be convincing. When the constitution was adopted the number of counties in Virginia was only sixty-one; and two delegates were allowed for the districts of west Augusta, comprehending, I presume, the north-western part of the state. There are now ninety-two counties, to which if we add, the eight counties formed in Kentucky before the erection of that part of Virginia into an independent state, it will appear that the senate must have given their assent to the formation of thirty-eight new counties, and consequently to an addition of seventy-six members to the house of delegates in the period of six and twenty years. Of these new counties, Henry, Madison, Fluvanna, Nottoway, Matthews and Greensville, are all that are recollected to have been made on the eastern side of the blue-ridge of mountains. The senate then do not appear to have been actuated by any narrow local policy in this respect; and we may reasonably conclude that if they had entertained any jealousy of the superior weight and influence of the house of delegates, they would have refused their assent to so great and rapid an extension of its members. This is not mentioned as an argument in favor of the present arrangement; it is Intended only to show, that practical evils (how justly soever to be apprehended) do not always flow from theoretical imperfections: the imperfection in this part of the constitution of the senate is probably corrected by that which denies to them the right of originating any bill;38 and the denial of the right of making any amendment whatever to a money-bill may likewise be regarded as an additional security against any great inconvenience resulting from the unequal apportionment of the senate, so long as those parts of the constitution remain in force: whenever an amendment is to take place, it may be worth the inquiry, whether these limitations to the power of the senate ought to be continued upon the present footing; or whether they might not be more advantageously modified as in the constitution of the United States.
Mr. Jefferson remarks,39 “that the senate is by its constitution too homogeneous with the house of delegates; being chosen by the same electors, at the same time, and out of the same subjects, the choice of course falls upon men of the same description.”
As we have in fact but one class of citizens in Virginia, it might be difficult to remedy this defect in the constitution of the senate, otherwise than by some alteration in the mode of election. That which prevails in Maryland, seems to promise fairly to render the choice of senators more select than the mode prescribed by our constitution; but objections have been made, and apparently with great justice, to the power which the senate of that state possess of filling up intermediate vacancies. Senators may also be chosen from any part, of the eastern shore, in which a vacancy may happen. These imperfections are said to have produced some effects, that have been greatly complained of in that state, notwithstanding the superior advantages which elections, by special electors, might have been expected to secure. As by our constitution the senator must be a resident within the district for which he is chosen, the only amendment requisite, probably is, that he should be chosen by a number of electors, selected for that purpose in every county in the district, and chosen in the same manner as delegates are chosen: or the electors might be chosen from the whole district as senators are at present; which would give to the larger counties their proportional weight in the choice. Nine electors in each district would probably be found sufficiently numerous, and small enough to render both the choice of senators, and that of the electors themselves, as select as they could be made in the districts, respectively.
An objection to the present constitution of the senate, also arises from the very small number who compose a quorum in that body, the majority of which (seven only) may be required to reject the intemperate act of one hundred and eighty-seven members of the other house, or may control or defeat the wisest measures which may be brought forward there. So great a disproportion between the two branches of the legislature seems not to be advisable; for the many are impatient of the control of a few. It seems agreed that in free governments, the most numerous branch of the legislature ought to possess a power to originate laws; but, ought they to possess that right exclusively? Our constitution has decided this question in the affirmative, that of the United States contains a preference to the negative. I am inclined to doubt, whether, if the constitution of our senate were assimilated as a legislative body, to that of the senate of the United States; and that of the latter, to the constitution of our state senate, it would not produce an excellent improvement in both. The senate of Virginia is purely a legislative body; they are chosen immediately by the people, in the same manner as their delegates; they have perfectly the same common interest with their constituents, and with the delegates in every respect. Why then not originate any bill, nor alter an iota of a money-bill? The senate of the United States are not the immediate representatives of the people, but of the states in their politic capacity; they are chosen for a longer period; they cannot be recalled; they cannot be removed by impeachment; they are, themselves judges in cases of impeachment; they form a part of the executive department; vote upon treaties, etc. and concur in all appointments to important offices. Such a body may possibly catch the contagion of executive influence: it may devise measures in concert with that department, which it may not only promote, but originate in the legislature: it may possibly do more harm than good in the attempt to amend a revenue law; especially since the constitution fixes a permanent distinction between direct and indirect taxes, which are to be apportioned, or not, among the states, as this distinction may warrant. Many objections may therefore be made to these powers in a senate of the United States, which, to me, do not seem to apply to the senate of a member of the confederacy. These objections, also, would probably be greatly diminished, If the numbers in the house of delegates were lessened, and those in the senate increased. Our present legislature consists of two hundred and eleven members: if a third, a fourth, or even a fifth part of them composed the senate, that body would probably feel a confidence in itself which may soon be wanting; especially as long as an undue apportionment of its members between the several parts of the state is supposed to exist. They would also possess in reality, more of the confidence of the people; their deliberations would be more respected, and their opposition, if necessary, to any unconstitutional, or intemperate act of the house of delegates more firm and effectual.
3. Each house chooses its own speaker, appoints its own officers, settles its own rules of proceeding (except that a quorum of the senate is fixed by the constitution) and directs writs of election for supplying intermediate vacancies.40
4. All laws originate in the house of delegates, but may be approved or rejected by the senate or be amended with the consent of the house of delegates, except money bills, which in no instance can be altered by the senate but must be wholly approved or rejected:41 on these heads some remarks have already been made.
5. Either house of the general assembly may adjourn themselves, respectively.42 This part of the constitution, for want of a provision similar to that in the constitution of the U. States, may, in case of disagreement between the two branches, produce great inconvenience.
6. The general assembly shall neither be prorogued nor adjourned by the governor during their sitting; nor dissolved by him at any time; but he shall, if necessary, either by the advice of the council of state, or on application of a majority of the house of delegates, call them before the time to which they shall stand prorogued or adjourned.43
The abuse of the regal prerogative of proroguing and dissolving the colonial legislature by the governors appointed by the crown, prompted this necessary precaution, to secure to the legislature, a perfect independence of the executive department; not only in respect to its existence, which formerly was made to depend upon the will of the crown or its governors; but in respect to its deliberations, which were frequently interrupted by sudden and unexpected prorogations, whenever any thing unpalatable to that department was the subject of discussion. The wanton exercise of this power gave rise to the appointment of conventions, as has been already remarked; and thus hastened the period which put an end to the power, altogether.
7. The two houses of assembly, by joint ballot, appoint the governor, the members of the privy council or council of state, judges of the supreme court of appeals and general court, judges in chancery, (judges of admiralty before the adoption of the constitution of the U. States) secretary, treasurer, and the attorney general; the judges, secretary and attorney general, to be commissioned by the governor and continue in office during good behavior.44 They likewise have been in the habit of appointing all officers of the army and navy raised under the authority of the state; and militia officers, above the rank of a field officer; the appointment of militia officers of that rank, and under it, being vested in the executive department.45 All officers which have been created by law, have also generally been filled by the general assembly.46 This very extensive power not only gives to the legislative an influence and control over the other departments of government, which seems incompatible with the principles contained both in the bill of rights and constitution, which declare, that they ought to be separate, and distinct; but, it is to be apprehended tends to give to the individual members of the former, during every session of assembly, an influence by no means reconcilable to those principles, possessing not only a power of appointing to office, but, not unfrequently the power of removal also, by a kind of annual or triennial ostracism,47 too many occasions occur for indulging private partiality, resentment or dislike, as well as the dictates of an intolerant party spirit. Nothing less than a miracle can be expected to produce an assembly of two hundred persons, wholly exempt from the influence of some of these passions. The house of delegates likewise possesses the power of impeaching the governor when he is out of office, and others offending against the state, by mal-administration, corruption or other means by which the safety of the state may be endangered:48 this is a power which they have never yet exercised, and in respect to the officers of the executive department, can rarely have occasion to exercise, whilst they possess the power of removal, in the summary method above mentioned.
The strictures of Mr. Jefferson, on these manifold defects in our constitution, are above all panegyric, in the eyes of those, who wish to appreciate properly, the benefits arising from a government constructed upon the solid basis of a representative democracy, in which the powers should be so divided and balanced among the several bodies of the magistracy as that no one can transcend its legal limits, without being effectually checked and restrained by the others.49 To the attentive perusal of the student I therefore most earnestly recommend them. But there is one important defect in the constitution of the legislative department, which he has not noticed, viz. that the justices of the county courts are, notwithstanding the principle of separation, contemplated by the framers of the constitution, expressly declared to be eligible to either house of assembly.50 These members unite in their own persons such a variety of powers as appears perfectly incompatible with the principles of a democracy. As legislators, they have not only the power to make laws, but moreover the appointment of the governor, members of the privy council, treasurer, secretary, judges of all the superior courts, attorney-general, register of the land-office, major-generals, brigadiers, and all other militia officers above the rank of a colonel; all officers of the army and navy in time of war; and, with a few exceptions only, all other officers under the authority of the state; not forgetting senators to the congress of the United States. As justices of the county courts, they are judges in all cases of life and death where a slave is to be tried; and of all offenses under the grade of felony51 at common law of which a free person may be accused. They constitute an examining court, whenever a free person is brought before one of their number, accused of any crime, amounting to felony at common law, and may remand him for a final trial to the district court, or discharge him, as they think proper. They are judges without appeal, in all civil cases, where the matter in controversy is under ten dollars, and perhaps where it is under twenty dollars. They are also judges in all other civil cases arising within their county (whatever be the amount) both at common law, and in equity. They recommend militia officers under the rank of a brigadier, and nominate all sheriffs, and coroners; the former out of their own body. They open roads, build bridges, erect court-houses and prisons, and levy the expense thereof upon the county; and lastly, they recommend to the executive, the persons whom they wish to admit into their own body. They may be at one and the same time, members of the general assembly, (or of congress), judges of the county courts, and militia officers of any rank, whatever. So formidable an accumulation of powers in any one set of men, cannot fail, in process of time, of establishing an elective aristocracy in every county; a few generations, perhaps a few years, will convert it into an hereditary aristocracy, in fact. For, those who have power to recommend, or to appoint, to office, in so many instances, will not very long be forgetful of their own families, connections, and friends. The esprit du corps will descend from father to son, and from brother to brother: and as the number of justices in the counties is unlimited, all who have once attained to that rank, will probably be tenacious of it in their families. This then may be regarded as one of those formidable evils in our present constitution, which no future convention should permit to endanger the total subversion of the principles of our government.52
Mr. Jefferson in his draft of a constitution, proposes sundry limits to the power of the legislature; perhaps they do not go quite far enough; whatever may be regarded as the fundamental laws of a state ought to be fixed beyond the power of the ordinary legislature to alter; such ought all laws to be deemed which respect the rights of the citizen, or relate to the disposition of the permanent property within the state: the abolition of entails, and the establishment of the succession to estates, in parcenary, two fundamental laws of a democratic state, rest now upon legislative authority, only: they ought to receive the inviolable sanction of the constitution. The exclusion of aliens from offices of trust, or profit, or from holding lands, unless they actually reside within the state; a similar exclusion of such other description of persons, as sound policy might lead us to reject from the class of citizens; the security of equal rights to all whom such a policy might admit into the class of citizens; the independence and total separation of the several departments of the government from each other; their respective rights and duties, as they relate to each other, and to all others as far as they can be prescribed by the constitution of the state, ought to be placed above the reach of the ordinary legislature.
There is one defect in our constitution, which I shall particularly notice, and then conclude this part of our review of it. Any person who is entitled to demand against the common. wealth any right in law or equity, may petition the high court of chancery, or the district court holden in Richmond, according to the nature of his case, for redress, and such court shall proceed to do right therein.53 But if this right or demand happens to be of a pecuniary nature, it seems to be held that the treasurer cannot pay the party entitled thereto, unless an appropriation for that purpose shall have been first made by the legislature. Thus, the party, notwithstanding the judgment or decree of the court in his favor, is still left dependent on the good will of the legislature for his redress. In other words, the legislature, if it be unjust enough to do so, may frustrate the constitutional act of the judiciary department, and keep any public creditor out of his just debt forever. This might easily be avoided, by an amendment to the constitution, declaring, that no money shall be drawn from the public treasury, but in consequence of appropriations made by law, or of the judgment or decree of one of those courts.
II. The constitution, powers, and duties of the executive department are next to be considered.
The governor is chosen annually by joint ballot of both houses of assembly: he may be continued in office three years, successively, but is ineligible for four years after he is out of office; and when out of office he may be impeached by the house of delegates: he shall with the advice of council exercise the executive powers of the government, according to the laws of the commonwealth; and shall not under any pretense exercise any power or prerogative, by virtue of any law, statute or custom of England: but he shall with the advice of council have the power of granting reprieves or pardons, except where the prosecution shall be carried on by the house of delegates, or the law shall otherwise particularly direct; in which cases no reprieve or pardon shall be granted, but by resolve of the house of delegates. An adequate but moderate salary shall be settled on him during his continuance in office. He may either by the advice of the council, or on application of a majority of the house of delegates, convene the legislature: he may appoint militia officers (not above the grade of a county lieutenant, I presume) “with the advice of council, or recommendations from the respective county courts”: he may embody the militia with the advice of the privy council, and when embodied, shall alone have the direction of the militia under the laws of the country: he is to commission the judges of the superior courts, the secretary, and attorney general, when appointed by the general assembly, or (in case of a vacancy during the recess of the legislature) by the executive, with advice of council: He is likewise, with the advice of council, to appoint and commission justices of the peace, for the counties, such appointments to be made upon the respective recommendations of the county courts; and sheriffs and coroners, in like manner.54
The privy council consists of eight members chosen also by joint ballot of both houses, either from their own members, or the people at large; they annually choose a president out of their own members, who in case of the death, inability, or necessary absence of the governor “from the government,” shall act as lieutenant governor. Four members constitute a quorum, and their advice and proceedings, must be entered on record and signed by the members present, (but any member may enter his dissent to any part thereof,) to be laid before the general assembly when called for by them. A sum of money appropriated for that purpose, is divided annually among the members in proportion to their attendance; two of them are removed by joint ballot of both houses at the end of three years, and are ineligible for the three next years.55
Such is the constitution of the executive department; and nothing surely can more strongly evince the necessity of fixing the fundamental laws of the state, in a government which professes to make the several departments of government, separate, distinct, and independent of each other, than this short view of the manner in which the executive department in Virginia, is chosen, paid, directed, and removed, by the legislative. It possesses not a single feature of independence: nothing is necessary but for the legislature to give to its mandate the form of a law (whatever be the nature of that mandate) and it acquires instantly a constitutional sanction, and obligation upon the executive. How then can the legislative, and executive departments of the government be said to be “separate and distinct, so that neither shall exercise the powers properly belonging to the other.”56 How far such a qualified negative upon all their proceedings as that which is confided to the president of the United States,57 an election conducted upon similar principles, by electors chosen in the several senatorial districts; a perfect independence in respect to continuance in office; an incapacity to be re-elected for a period at least equal to that for which he may be elected; and a salary not to be increased or diminished during his continuance in office,58 may render the governor something more than the minister, (I had almost said, the finger) of the legislature, may well deserve the most mature consideration of those, to whom the important task of reforming our constitution shall be confided. But until something of this sort be done, until the members of the privy council (if it should be judged expedient to continue that part of the executive,) shall be rendered equally independent of political, and of personal, influence, the executive department of this commonwealth can never be regarded as a separate, co-ordinate, and distinct branch of the government. The legislature will in fact possess and exercise all the powers of the executive. If the union of these powers in the same men or body of men be dangerous to the state, is that union less dangerous when the legislature has the executive at its devotion, than when the executive dictates to an obedient legislature? Were the complying parliaments of the Tudors, or the late national assembly of France, more formidable to virtue or more terrible to the human race? When the legislature is at the devotion of the executive, an uniform, systematical tyranny prevails; the legislature being in fact no more than a screen interposed between the monarch and the people, to take off the odium of his tyranny: but when the executive is at the disposal of the legislature, faction, intrigue, jealousy, resentment, hatred, revenge, and every other malignant and detestable passion manifest the extreme of human depravity and corruption, until the whole state is thrown into a paroxysm of frenzy, anarchy and confusion; from which it recovers only to submit to a single tyrant instead of an host of despots.59 The people of Virginia must ever be equally averse to embrace either of these alternatives. Nothing but a complete reform in this part of our constitution can deliver us from the danger of one of them: especially if by any fatal mischance, the federal union should be broken, and Virginia take a rank among the nations, without first reforming her constitution. Those who deprecate the late horrid scenes in France, may then chance to find an equal subject of lamentation at home.
If the governor, from the mode of his appointment, may be considered as too much subjected to the influence and control of the legislative body, the members of the council of state cannot be more exempt from the same degree of influence: perhaps the personal independence of those members is too much exposed even to the personal influence of the individuals, who, by a kind of ostracism, are enabled to expose them to a degree of popular disgrace, by an official exile for three years. This institution owes its origin to a laudable jealousy of official influence. In its application, it is probable that such a consideration had never been thought of. In truth, the imbecility of the executive department is the best security against any undue influence arising from that quarter. No man was ever dangerous to a state who neither has, nor can have any thing in his gift. Scarce a single office in the state is at the entire disposal of the executive, for where the assembly do not appoint, the county courts recommend; not having the command of the treasury, they are equally destitute of pecuniary influence: what reason is there then for this odious, though oblique mode of inculpating men, against whom no shadow of a crime can be alleged? Surely the method of going out by rotation is infinitely preferable to a mode of removal, which must, in general, wound the feelings of those who exercise the power, as well as those who feel its effects.60
The council of state seems to possess whatever power to deliberate, may remain with, or be confided to the executive department: the governor can constitutionally perform no one official act without their advice, except in his capacity of commander in chief of the militia, when actually embodied; but he cannot embody them by his own authority, nor without advice of council. On the other hand, the council seem equally destitute (by the constitution) of the power of acting, as the governor of deliberating. Their president indeed, “in case of the death, inability, or necessary absence of the governor from the government,” shall act as lieutenant-governor.61 And a law of the state provides that in case of the death, or inability of both, in the recess of the general assembly, the privy councillor, whose name stands next in the list of their appointments, shall officiate as lieutenant governor; and that in the absence of the governor, such intended absence having been previously notified to them by him, and entered on their journals, if any business to be transacted at the council board necessarily requires dispatch before he can attend to it, they may proceed without him, and the act shall be as valid as if he had been present.62
The governor, with the advice of council, we may remember has the power of granting reprieves or pardons, except where the prosecution shall have been carried on by the house of delegates, or the law shall otherwise particularly direct; in which cases no reprieve or pardon shall be granted but by the resolve of the house of delegates.63 The committee of revisors, appointed by the general assembly in the year 1776,64 to prepare a code of laws adapted to a republican government, proposed to abolish the power of pardon in all cases, and generally to mitigate and apportion punishments according to the nature and degree of the crime. I know not upon what principle the bill was rejected, but I presume it was thought safer to continue the power of pardon, on its present footing, than to transfer it, in effect, to juries, whose lenity might too often interest them in favor of a criminal, from whom all chance of pardon might be taken away by their verdict against him. I am therefore inclined to think, that however just and proper it be for punishment to follow the crime with certainty, in all cases, yet that more offenders might escape if the power of pardon were abolished, than will ever escape by means of it. In case of treason against the commonwealth, the power of pardon is taken away from the governor by the act of 1794, c. 168,65 nor can the executive now remit any fine or amercement assessed by a jury, or imposed by any court of record, court martial, or other power or authority authorized to assess or impose the same.66 And in cases of impeachment, as the prosecution must be carried on by the house of delegates, the power of pardon is evidently taken away from the governor by the constitution; but under these restrictions, the power of pardon still remains with him, with the advice of the council.
Such are, in general, the powers of the executive department of the government, as provided for by the constitution; occasional acts were passed during the revolutionary war for extending them: and, in two cases, acts of indemnity67 were passed, to screen the executive from the suits of private persons who might suppose themselves injured by some exertions of authority for the salvation of the country, but which were neither authorized by the constitution, nor by any existing law. These acts demonstrate the defects of the constitution, or the improvidence of the legislature: they do more they show the danger to which the commonwealth may be exposed, for want of a proper arrangement of the powers of government, and the no less danger to the persons and properties of individuals, whose redress for real injuries might possibly be taken away by an act of the legislature. The validity of these acts of indemnity having never been judicially called in question, it is hard to say what respect might have been paid to them, in such a case. Perhaps the constitution of the United States, which prohibits the states from passing any ex post facto law, may be regarded as preventing the passing of such acts in future: but surely a constitution which seems to require such aid, for the protection of its best officers, against the vindictive malice of its worst citizens, or secret enemies, must be very inadequate to the purposes of a free, sovereign, and independent state. The imbecility of an executive, possessing no independent authority with respect to the public force, must in time of war, or danger, place it under the immediate direction of the legislature, which is thus transformed into a numerous executive council, annually elected. The incapacity of such a body to concert and conduct uniform measures, for such active operations as may be required for the defense of the state, is self-evident to every man of the least discernment. Nothing short of omniscience could prepare the members, before the time of assembling, to act according to the existing state of things; either the time must be lost in acquiring the necessary knowledge of these things, or ignorance, faction, and intrigue, will disconcert every measure that maybe proposed. A state thus governed would equally be exposed to internal convulsions, and to foreign insult or dominion. The expectation of forming an immediate and effectual federal government of the states, probably occasioned much of this inattention to the structure of the government so far as relates to its foreign concerns. The danger arising from this circumstance is strongly depicted by Mr. Jefferson.68 Every man must shudder with horror at the proposal which he mentions of making a dictator: had the legislature done so, the executive in all probability must have submitted without a struggle; and the opposition of the judiciary to such an authority must have been equally ineffectual. Inter arma silent leges, is a maxim which will ever be peculiarly applicable to that department, though in time of peace it may be regarded as the palladium of genuine liberty. Happily for us, many of the inconveniences which might have been apprehended in Virginia as a sovereign state, unconnected with any other, are now in a great measure remedied by the adoption of the federal constitution, by which all those objects which respect other nations or states, are consigned to the care, attention, and regulation of the federal government; whilst those which respect the domestic happiness, interest, and advancement of the state, its internal economy, peace, and good order, form an ample field for the wisdom and patriotism of the state-legislature to exert themselves, without hazarding, as we may reasonably hope, a repetition of those dangers to which a constitution formed without a precedent, and without experience to guide its framers, at first exposed us.
In the draft for a constitution of this state, prepared by Mr. Jefferson,69 there is an excellent delineation of the powers and duties which should be assigned to the governor, and council respectively; and with recommending it to the very attentive perusal of the student, I shall conclude my remarks on this part of the constitution.
III. The judiciary department of the government was originally vested in three superior courts, viz. the court of admiralty, the high court of chancery, general court of common law jurisdiction, and the supreme court of appeals;70 besides the county and corporation courts, which existed antecedent to the revolution. The court of admiralty was discontinued immediately after the adoption of the constitution of the United States, by which the subjects of its jurisdiction were transferred to the federal government; and the judges were elected judges of the general court.71 The judges of the court of appeals and of all the superior courts hold their offices during good behavior; but the constitution is silent as to the tenure of office by the justices of the county courts; the ordinance of convention “to enable the present magistrates and officers to continue the administration of justice,” authorizes the executive upon complaint against any justice of the peace then in commission of misfeasance in office or disaffection to the commonwealth, to remove him from his office, if they shall be of opinion that the complaint is just.72 An act nearly similar was also made in October, 1778, c. 5.73 but was repealed in the year 1787, (Sess. Acts, c. 23.) “as contrary to the true spirit of the constitution” of which opinion the general court appear to have been, in the case of a magistrate who had been removed from office, by the executive under that law. The constitution declares that the judges of the superior court shall have fixed and adequate salaries; but is silent as to the justices of the inferior courts, who being eligible as members of the general assembly, seem precluded from any salary, by the same article.74 Whatever idea of permanency, may be supposed to have been intended by the expressions in the constitution, the salaries of the judges have from time to time been changed; and though nominally less than was fixed by the acts constituting the courts respectively, may be considered at present, as rather more, than less than the standard then adopted; the duties of the offices, respectively, are probably multiplied tenfold, since that period, yet the salaries are regarded as adequate by the legislature; and from their opinion upon this subject there is no appeal. The judges are removable from office on impeachment by the house of delegates, and conviction of corruption or other misfeasance in office, according to the station of the person impeached; who, if a judge of the general court must be tried in the court of appeals; but the judges of the other courts must he tried in the general court.75
The separation of the judiciary power from that of the legislative, and executive, and the perfect independence of the former, seems to have been in theory, a favorite object with the people of the United States, generally, both in their respective state constitutions, and in that of the United States. But this theory has perhaps in no one instance been successfully carried into practice. In the federal constitution, which in this respect appeared to be the most perfect, this great desideratum was thought to have been attained: but experience seems to prove the contrary. Of what importance a successful arrangement of this part of the government, may be, in such a commonwealth as our own, connected as it is with the federal government, cannot be more satisfactorily illustrated, than we find it in the Federalist, number 78, and 79. As the observations which they contain on this subject are too valuable to be abridged, I shall give them nearly at length.
|“The standard of good behavior for the continuance in Office of the judicial magistracy, is certainly one of the most valuable of the modem improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince. In a republic it is a no less excellent barrier to the encroachment and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.|
|“Whoever attentively considers the different departments of power must perceive, that in a government, in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution: because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or the wealth of society, and can lake no resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm, even for the efficacy of its judgments.|
|“This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power;76 that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself, against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: I mean so long as the judiciary remains truly distinct from both the legislative and executive. For I agree “that there is no liberty if the power of judging be not separated from the legislative and executive power.”77 And it proves in the last place that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security.|
|“The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution, void. Without this, all the reservations of particular rights or privileges would amount to nothing.|
|“Some perplexity respecting the right of the courts to pronounce legislative acts, void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.|
|“There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised is void. No legislative act, therefore, contrary to the constitution can be valid. To deny this would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do, not only what their powers do not authorize, but what they forbid.|
|“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, when it is not to be collected from any particular provision in the constitution. It is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them, to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.|
|“Nor does this conclusion by any means suppose a superiority of the judiciary to the legislative power. It only supposes that the power of the people is superior to both: and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than by the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.|
|“This exercise of judicial discretion in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens that there are two statutes existing at one time, clashing, in whole or in part, with each other; and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation; so far as they can by any fair construction be reconciled to each other, reason and law conspire to dictate that this should be done: when this is Impracticable it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time should be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable that between the interfering acts of an equal authority that which was the last indication of its will, should have the preference.|
|“But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule, as proper to be followed. They teach us, that the prior act of a superior, ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.|
|“It can be of no weight to say, that the courts on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL, instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation if it proved any thing would prove, that there ought to be no judges distinct from that body.”|
|“If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be so essential to the faithful performance of so arduous a duty.|
|“This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill-humors, which the arts of designing men, or the influence of particular conjunctures sometimes disseminate among the people themselves, and which though they speedily give place to better information and more deliberate reflection, have a tendency in the mean time to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Yet it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty, as faithful guardians of the constitution, where legislative invasions have been instigated by the major voice of the community.|
|“But it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill-humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity, and confining the operation of such laws. It not only serves to mode. rate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our government, than but few may be aware of. The benefits of the integrity and moderation of the judiciary, have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may be to-morrow, the victim of a spirit of injustice by which he may be a gainer to-day. And every man must now feel that the inevitable tendency of such a spirit, is to sap the foundation of public and private confidence, and to introduce in it’s stead universal distrust and distress.|
|“That inflexible and uniform adherence to the rights of the constitution and of individuals which we perceive to be indispensable in the courts of justice can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence. If the power of making them was committed either to the executive or legislative, there would be danger of an improper complaisance to the branch which possessed it; if to both there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws.|
|“There is yet a further and a weighty reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duties in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents, must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society, who will have sufficient skill in the laws, to qualify them for the station of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those, who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice, to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score, would be greater than they may at first sight appear: but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.|
|“Next to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. In the general course of human nature, a power over a man’s subsistence, amounts to a power over his will. And we can never hope to see realized in practice the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources, on the occasional grants of the latter. The enlightened friends to good government in every state, have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. Some of these, indeed, have declared that permanent78 salaries should be established for the judges; but the experiment has in some instances shown, that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention has accordingly provided, that the judges of the United States, “shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”|
|“This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood, that the fluctuations in the value of money and in the state of society, rendered a fixed rate of compensation in the constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature, to vary its provisions in conformity to the variations in circumstances; yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty, by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial offices, may from time to time be altered as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him.|
|“This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed, that together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states in regard to their own judges.|
|“The precautions for their responsibility, are comprised in the article respecting impeachments; they are liable to be impeached for mal-conduct by the house of representatives, and if convicted may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one, which we find in our own constitution in respect to our own judges.”|
The duties of the judiciary department, in general, form the subject of several articles in our bill of rights and constitution,79 which contain certain fundamental rules for the direction of that department on occasions which respect the life, liberty, or property of the individual, and for his security against all attempts to injure or oppress him, either by private means, or under the color of public authority. These will be pointed out, under their proper heads, as they occur in the course of our examination of the several subjects connected with them. At present it will be sufficient to remark, that no citizen of Virginia can be prejudiced either in his person or his property, by any authority, or the abuse of any authority delegated to any branch of the government of this commonwealth, (or of the United States) so long as the judiciary departments of those governments, respectively, remain uncorrupt, and independent of legislative or executive influence or control. But whenever the reverse of this happens, by whatever means it may be effected (whether fear or favor) liberty will be no more, and property but a shadow.
Having in the preceding parts of this tract, suggested some hints for the amelioration of the constitutions of the legislative and executive departments, I may be pardoned for some remarks upon the judiciary department likewise, which are offered with the same view.
The nature of the judicial office demands two indispensable qualifications in a judge: an integrity not to be shaken by fear, or favor, or corruption; and a thorough knowledge of the constitution of his country, the rights of his fellow citizens, and the laws made for their protection and security: if either be wanting the wisdom of a Bacon, or the integrity of an Hale will not make up for the deficiency.
To secure the integrity of a judge he must be placed above the reach of every species of temptation; he must be without hopes and without fears, as far as relates to the tenure of his office and the continuance of his salary. That salary should not only be sufficient to place him above the temptations of avarice, or necessity, but to enable him to devote his whole time and attention to the duties of his office. If a judge be dependent upon other pursuits for a competent subsistence, he must of necessity at some times neglect either his duties, or those studies, which are necessary to qualify him for a proper discharge of them: if he be indigent and distressed in his private circumstances, his judgment may be warped in favor of the debtor to the prejudice of the creditor; or, what is infinitely worse, it may encourage the offer, (and even compel the acceptance,) of bribes, or other means of corruption. Transactions of this nature may be conducted in a manner which defies detection. If the want of an independent salary may expose a judge to such temptations from every party in whose cause he may sit, how much more to be dreaded is that influence from any other department of government, which can raise or depress him as it pleases?
In a country whose constitution and government is complicated, the laws voluminous, intricate, and not unfrequently contradictory, ability is, in point of importance, a qualification almost equally as necessary to a judge, as integrity itself. This qualification must be sought for among those gentlemen of the bar, whose long practice and experience and pre-eminent talents have singled them out, and gained the notice, esteem, and confidence of their countrymen in general. Such men will not be prevailed upon, to resign an extensive, and lucrative practice, for a scanty or precarious salary, and a laborious office: men of inferior talents, only, whose professional emoluments perhaps scarcely defray the expense of their attendance on the courts, will be the sole candidates for the imaginary independence annexed to a scanty salary. The bench, instead of commanding the respect of the bar must discover its own inferiority; and this discovery will not be confined to those whom it affects: all will see and hold in contempt the decisions of men of inferior capacity. Hence, no person will rest satisfied with, or submit to a judgment pronounced against him by judges, whose incapacity is generally admitted; Every cause must go to the supreme court of appeals, for the correction of errors supposed to have been made in every decision, nor will the final determinations of that tribunal, (for that tribunal also must in time be filled with men of the same character) satisfy the minds of unsuccessful litigants: the disgust, and contempt of the judiciary will become general, and it will be soon regarded as the rotten part of the constitution. Nor is this all a spirit of litigation is always proportionate to the delay, as well as to the chances of success, in a law-suit; and whenever, from the operation of those causes, it becomes usual to carry all suits, by appeal, to the highest tribunal in the state, the wheels of justice must become too much clogged to perform a complete revolution. This has been exemplified already in the general court, where in a very few years, suits had so multiplied, by appeals from the county courts, and other causes; that the legislature thought it justified a declaration, that the delays inseparable from its constitution, were in many instances equal to a denial of justice. Such an accumulation of suits in the court of appeals would be without remedy, but by a change in the constitution itself.
If the judicial office be made an object worthy of the acceptance, and even ambition of men of the first legal talents in the state, the mode of selecting and promoting them may perhaps be improved by requiring that judges of the general court, and judges of the superior courts in chancery, should be recommended by a joint ballot of the judges of those courts and of the court of appeals, and, that the judges of the court of appeals should be selected from the judges of those courts.80 The choice by these means would probably fall upon the most distinguished characters at the bar throughout the state: and a second selection could scarcely fail of rendering the court of appeals equally venerable and revered.
The many great objections to our present county court system were shortly mentioned in speaking of that article of the constitution which secures to the justices of those courts, the right of sitting in the legislature; it is not my purpose to enlarge upon the subject in this place, as this essay has already swelled beyond the limits which were originally proposed for it.81
Several miscellaneous articles in the constitution remain, which it does not seem necessary to notice at present. I shall mention one only, which relates to the unity of the state and which seems to have escaped the attention of those who are said to have been engaged in promoting a division of it; making the blue ridge of mountains the boundary.
|“The western and northern extent of Virginia (except as to the parts ceded to Maryland, Pennsylvania, North Carolina, and South Carolina) shall stand, in all respects, as fixed by the charter of King James the first, in the year one thousand six hundred and nine, and by the public treaty of peace between the courts of Great-Britain and France, in the year one thousand seven hundred and sixty three; unless by act of legislature, one or more territories shall hereafter be laid off, and governments established westward of the Allegheny mountains.”82 Under this clause of the constitution the cessions of territory heretofore made in congress, and the erection of Kentucky into an independent state, were fully authorized.83 But whilst the constitution of the state remains unchanged, the commonwealth cannot be subdivided, or dismembered of any part of its territory, not westward of the Allegheny mountains. And the Counties, in that part of the state, it is presumed, are not in such a situation, at present, as to render the establishment of a separate government, between the Allegheny mountains and the state of Kentucky, desirable at this time.|
Thus having taken a pretty comprehensive view of the constitution of the commonwealth, I shall next proceed to consider that of the United States somewhat at large; the intimate connection and union of the two governments thereby established, requiring that they should as far as possible be treated of together; each being in fact but a distinct part of one great political system, to which no perfect parallel can be found in any other country, or in the annals of any other people.
- A. Let the several counties in the commonwealth be arranged into districts for choosing representatives to congress, as nearly as possible, according to the census by which representatives to congress are to be apportioned among the several states.
- B. Let each district be entitled to choose two senators in the manner hereafter mentioned; but in choosing senators for that district, in which the counties of Accomack and Northampton may be, let one senator be chosen who is a resident on the eastern shore, and one who is a resident on the western shore.
- C. Let each district be likewise entitled to choose as many members of the house of delegates, as their several proportions of the whole number of militia (or free white males over the age of sixteen, and not more than five and forty years of age); and of the whole amount of taxes paid into the treasury of the commonwealth, annually, from the several counties in each district respectively, according to the following rate thereof, respectively; that is to say,
- 1. Let the whole number of militia, (according to the before-mentioned description,) who may be found within the state by the last census of the United States, preceding such arrangement, be divided by the whole number of districts for choosing members to congress; and let there be four members of the house of delegates, throughout the state, for the number of militia which the quotient may amount to; that is to say, one member of the house of delegates, for any number of militia equal to a fourth part of such quotient; two members for any number of militia equal to one-half of such quotient, and so on, in the same proportion, to be chosen in the several districts before mentioned, in proportion to the number of the militia in each district respectively, in the manner herein after mentioned.
- 2. Let the aggregate of taxes paid into the treasury of the commonwealth, annually, upon an average of the ten preceding years, be in like manner divided by the whole number of districts for choosing members to congress, and let there be four members of the house of delegates throughout the state, for every sum in dollars which the quotient may amount to: that is to say, one member of the house of delegates for any number or sum in dollars equal to a fourth part of such quotient, and so on in the same proportion to be chosen in the several districts, in proportion to the taxes paid by the several counties therein, to the state, upon a like average of ten preceding years.
- 3. Let the fractions of militia and of taxes, amounting to less than the fourth part of an unit in any district, be added together, and if their aggregate number shall amount to one-eighth part of the general quotient of militia, and of taxes, (as above mentioned) added together, let every such district be entitled to choose one additional number of the house of delegates for the same.a
- 4. The number of delegates which each district throughout the state may be entitled to choose, being thus ascertained, let each county in the several districts respectively, choose one person, residing within the same, to be a member of the house of delegates for such county, in the same manner as at present. And if the number of delegates which any district may be entitled to choose, shall exceed the number of counties therein, let any city or borough within such district, which may by the present constitution, or by law, be entitled to choose a member of the house of delegates, be likewise entitled to choose a member thereof as at present. And let the remainder of the members of the house of delegates be chosen by the districts, respectively, at large, in the same manner as senators are now chosen; but let no person be chosen as a delegate from any county or district, unless he shall actually have resided within the same twelve months, at least, before his election.
This plan of representation would give forty-four members to the senate, and one hundred and seventy-six members (including fractious) to the house of delegates. The district composed of the counties of Berkeley, Jefferson, and Hampshire, would be entitled to five delegates; that of Frederick and Shenandoah to eight; that of Loudon, Fairfax, and Prince William, to nine; that of Fauquier and Culpeper to seven, that of King and Queen, King William, Essex, and Caroline, to nine; that of Henrico, Charles City, New Kent, and Hanover, to nine; that of Norfolk, Princess Anne, and Nausemond to eight, &c.
According to this plan, there would be an union of all the combinations of separate interests, that the nature of our country, population, and state of society seem to admit. The senate being arranged according to the census, may be considered as representing the whole population of the state in a just proportion. The several counties will retain the advantages of an immediate representation from each respectively, as at present; whilst the members from the districts respectively, will represent the strength and wealth of their respective districts in just and equal proportions. If the senate be elected for four years, as at present, one-fourth of its members vacating their seats annually; and, if the members of the house of delegates who are chosen from the districts at large, be elected for two years, and those from the counties for one only, as at present, it would seem to promise an union of all the advantages of frequent changes, and of permanent bodies, in our state legislature. And if no person were eligible as a delegate until the age of twenty-five years, nor as a senator, until thirty, it might be expected that there would be a greater number of men of experience in the legislature than at present.
TABLE SHOWING THE MILITIA, AND TAXES, IN EACH DISTRICT.
|1.||Monongalia, Brooke, Ohio, Harrison, Wood, and Randolph||4427||$ 593|
|2.||Berkeley, Jefferson and Hampshire||4777||$ 2892|
|3.||Frederick and Shenandoah||5533||$ 5323|
|4.||Rockingham, Hardy, Augusta, Pendleton and Bath||6147||$ 3338|
|5.||Greenbrier, Rockbridge, Botetourt, Monroe, Kanawha||5024||$ 3018|
|6.||Wythe, Tazwell, Montgomery, Washington, Lee, Grayson and Russel||6099||$ 3211|
|7.||Loudon, Fairfax, and Prince William||5505||$ 6770|
|8.||Westmoreland, Richmond, Lancastar, Northumberland, King George and Stafford||3664||$ 6708|
|9.||Fauquier and Culpeper||4163||$ 4953|
|10.||Orange, Madison, Louisa, and Spottsylvania||4121||$ 7342|
|11.||King & Queen, King William, Essex and Caroline||3296||$ 8628|
|12.||York, Middlesex, Mathews, James City, Gloucester, Warwick, Elizabeth City, Accomack and Northampton||4824||$ 9640|
|13.||Franklin, Bedford, Patrick and Henry||4463||$ 3624|
|14.||Halifax, Pittsylvania and Campbell||4900||$ 6117|
|15.||Prince Edward, Charlotte, Buckingham, Cumberland||4262||$ 7460|
|16.||Powhatan, Goochland, Amelia, Chesterfield||3183||$ 8657|
|17.||Brunswick, Luuenburg, and Mecklenburg||3829||$ 7202|
|18.||Dinwiddie, Prince George, Greensville and Nottoway||3366||$ 7568|
|19.||Sussex, Southampton, Surry and Isle of Wight||4029||$ 7561|
|20.||Norfolk, Princess Anne, and Nausemond||5556||$ 5349|
|21.||Albermale, Amherst and Fluvanna||4004||$ 5876|
|22.||Henrico, Charles City, New Kent and Hanover||3637||$ 8564|
Let one fit, able, and discreet person, learned in the law (where persons of that character can be found) be selected in every county, who, together with the persons of the like description, selected from the three next adjacent and most convenient counties thereto, might be constituted judges of the court of common pleas, and oyer and terminer, for their several counties, and any two of them constitute a court, to be held quarterly in their respective counties, with jurisdiction in all civil cases at common law, above the value of thirty dollars, and in all cases of simple larceny, and other lesser offences against the commonwealth. They might also be constituted judges in chancery within their district, or circuit, with power to hold two sessions, annually, at some one county court-house within their circuit. Let these judges receive an adequate compensation for their services, either by a fixed salary, or by wages according to their attendance: Let them be ineligible to either house of assembly, and let the power of recommending justices of the peace, sheriffs, and coroners, be transferred to them. Let them moreover hold their offices during good behaviour, or during the existence of their courts. 82. C. V. art. 21. 83. L. V. Edi. 1794. c. 40, and 53. The constitutionality of the cession made to congress for the permanent seat of government (Ibid. c. 50.) seems questionable.