with Notes of Reference (1803)St. George Tucker Of the Constitution of Virginia
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1. Bill of Rights, art. 3.
2. Constitution of Virginia, art. 3.
3. Constitution of Virginia, art. 9.
4. Ibidem.
5. Notes on Virginia .... 215, Paris edition.
6. Ibidem.
7. The case of the district court clerks in the court of appeals. May 12, 1788, and of Kamper vs. Hawkins in the general court, November 16, 1793.
8. Notes on Virginia, p 214. to 235. Paris edition.
9. The national judges are no more than the mouth that pronounces the words of the law. Mont. Sp. of Laws, vol. 1 p. 226.
10. Notes on Virginia, p 215.
11. Ibidem, p. 217.
12. Ordinance of convention, July 1775, c. 4.
13. Mr. Jefferson, I apprehend, is mistaken in supposing that in April, 1776, independence and the establishment of a new form of government had not been opened to the mass of the people. The idea was frequently suggested in the public newspapers, even as far back as November 10, 1775, as soon as Lord Dunmore published the king's proclamation declaring the colonies in rebellion; and his own, calling upon the people to repair to the royal standard, or to be looked upon as traitors, and dealt with according to the rules of martial law; and inviting the negroes to join his majesty's troops for the reduction of the colony to a state of obedience.
14. July, 1775, c. 4. Chancellor's Revisal, 1785, p. 30.
15. Virginia (official) Gazette, printed by A. Purdie, May 10, 1776.
16. It is worthy of remark, that on the very same day, the congress then sitting in Philadelphia, came to a resolution "recommending to the respective assemblies and conventions of the united colonies, where no government sufficient to the exigencies of their affairs had been theretofore established, to adopt such government, as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents, in particular, and America in general. Journals of Congress, May 15, 1776."
17. Journal of the Convention. Few copies of this important document are now to be met with; I have therefore been more copious than otherwise I should have been, in the extracts, I have made from the copy in my possession.
18. Vol. 1. 211.
19. Defence of the French revolution. p. 60.
20. See the second section of the constitution.
21. Report of the case of Kamper vs. Hawkins, in the General Court.
22. That the legislature of the commonwealth, have regarded the constitution as obligatory upon them, will appear from the preamble of an act passed in May session 1783, c 33. Revisal of 1785, p. 204, assigning as a reason for repealing a former act, that it was found to be contrary to the constitution or form of government. A second instance occurs in the acts of 1787, c. 93. which assigns the same reason for a repeal of a former law, 1783, c. 81. The repeal of the first law establishing district courts, 1787, c. 39. was a tacit acknowledgment of the same principle as contended for by the court of appeals in their remonstrance of May 12, 1783. Other instances doubtless might be adduced. It seems now settled in all the superior courts, that whenever "the constitution and an act of the legislature are in opposition, and cannot exist together, the former must control the latter." Remonstrance of the court of appeals to the general assembly, May 12, 1788.
23. C. V. art. 5. There are now (1802) ninety-two counties. The city of Richmond was allowed to have a representative by the act of 1788, c. 63. The elections are now held on the same day in every county, viz. on the fourth Wednesday in April yearly. L. V. 1788, c. 14.
24. The bill of rights, art. 6. gives us the following principle in regard to the right of suffrage: "that all men having sufficient evidence of permanent common interest with, and attachment to the community, have the right of suffrage, &c. How far the constitution may have conformed to this principle in fixing the right of suffrage as then exercised, has been a matter of much dispute and controversy, of late.
25. See V. L. Edi. 1785, p. 30.
26. Edi. 1769. p. 122.
27. Edi. 1769. p. 287.
28. See V. L. Edi. 1785, p. 3.
29. Notes on Virginia, p. 211.
30. State of the taxes arising on land, negroes, and other property in Virginia for the year 1794, annexed to the letter from the secretary of the treasury to the speaker of the house of representatives in congress, December 19, 1796, accompanying a plan for laying and collecting direct taxes.
31. Notes on Virginia, p 212. Paris edi. It is much to be wished that the enlightened author would favour his country with a second edition, as many documents might at this time be procured, which had no existence at the time he wrote.
32. The number of white males between sixteen and forty-five, in this table, and that of slaves, are taken from the census made in the year 1801 The taxes are taken from the report of the secretary of the treasury of the United States to Congress, Dec. 19,1796, before referred to, page 403. The number of counties and representatives, from the acts of our assembly.
33. The difficulty of establishing a proportion of representation combined of the personal and pecuniary ability, or burden borne in the several parts of the state, is probably less than those who have not turned their attention to the subject may conceive; the author of these pages natters himself that it will not be thought arrogant in him to suggest one, which to him appears founded upon the most just principles, and admitting of being reduced into practice without difficulty.
- 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.
34.
TABLE SHOWING THE MILITIA, AND TAXES, IN EACH DISTRICT. | |||
| Districts | Counties | Milltia | Taxes |
| 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 |
35. V. L. May 1776. c. 6. Edi. 1794 c. 61.
36. C. V. Art. 6.
37. Notes on Virginia .... 212.
38. As the senate cannot originate any bill whatsoever, they have not the power of correcting, or even of proposing the correction of, any error, into which they may once have fallen, nor of any hasty, unadvised, or unconstitutional measure, to which they may through inadvertance, or any other cause whatever, have once given their assent. A circumstance which ought most strongly to impress that body with a due sense of the prodigious importance, and infinite consequence, attached to their deliberations, and decisions.
39. Notes on Virginia, 213.
40. C. V. art. 7.
41. Ibidem art. 10.
42. Ibidem art. 8.
43. C. V. art. 10.
44. Ibidem art. 13. 14.
45. Ibidem. art. 13.
46. Appointments made in this manner, are not likely to be altogether as select, as the importance of them, may require, all responsibility is lost, in the great number of electors; private interest and intrigues have a large field of action, without much exposure to the chance of detection, and without danger of punishment. How far the giving to the executive, in certain cases, the right of nominating two or three persons, out of which number the general assembly might by joint ballot of both houses chuse one: or whether the giving to the house of delegates the power of nominating, by ballot of a majority of that house, three persons, out of which the senate might chuse two, from which number the executive should have the power of appointing one, might be a more eligible mode of making appointments in general, will be well worthy of consideration, if ever there should be a convention to reform the constitution. Perhaps some more eligible mode than either of these might be discovered for the appointment of the governor, members of the privy council, and the judges of the court of appeals, high court of chancery and general court.
47. C. V. art. 9. 11. 19.
48. Ibidem art. 16. 17.
49. Notes on Virginia, p. 214, to 235. Paris Edi.
50. C. V. art. 3.
51. By an act of the last assembly the justices of the county courts have now jurisdiction in some cases of felony; as I have heard.
52. One very great inconvenience which arises from the justices of the county courts being eligible as members of assembly, begins to manifest itself very strongly with respect to those courts. The constitution declares that all persons holding lucrative offices shall be ineligible to either house of assembly .... Those members who are justices of the county courts, being in all probability, equally tenacious of their seats in the legislature, and upon the bench of their courts, may be supposed to be unwilling to accept of any compensation for their services as justices, since that would exclude them from a seat in the legislature: and not less unwilling to agree to any proposition for improving the organization of the county courts, which might hazard their removal from their station as judges of them. Hence any improvement in the plan of those courts is rendered, if not impracticable, at least extremely improbable, without a change in the constitution. When services are gratuitously rendered, it cannot be expected that they will be performed with the same diligence, punctuality, or even ability, as where they meet with due compensation and encouragement. The great number of justices in the counties, generally, lessens the weight upon them individually; but it may well be doubted, whether the public is as well served, as if a few persons only were employed, selected for their superior abilities and integrity, and properly rewarded for their services. Great complaints have been made of the unequal administration of justice in the several counties, owing, as has been said, to the different conduct of the justices in many of them, either in holding the county courts regularly and going through their dockets, or in omitting to do so for months and even years together.
53. L. V. Edi. 1794, c. 85.
54. C. V. art. 9. 10. 13. 14. 15. 16. 18.
55. C. V. art. 11.
56. Ibid. art. 3. Bill of Rights, art. 5.
57. Mr. Jefferson, in the draught of a constitution for this commonwealth, subjoined to his Notes on the State of Virginia, proposes that the governor, two counsellors of state, and a judge from each of the superior courts, shall be a council to revise all bills, which shall have passed both houses of assembly, in which council the governor, when present, shall preside. Every bill before it becomes a law, shall be presented to this council, who shall have a right to advise its rejection; upon which similar proceedings shall be had, as when the president of the United States refuses his assent to an act of congress.
58. See Mr. Jefferson's draught of a constitution, art. 3. Title Governor.
59. Let those who doubt this remember the Dictators of Rome: or if they require a modem instance, let them turn their eyes to the establishment of the Consular Government in France.
60. The members of the council who have been removed in consequence of this unavoidable regulation in the constitution, have, in several instances, been re-elected as soon as the period of their incapacity is removed; a certain proof of what is advanced above. Mr. Jefferson, in his draught of a constitution, proposes that the members of the privy council shall be chosen, as at present, shall hold their offices seven years, and be ineligible a second time; and while they continue in office, shall hold no other office or emolument under this state, or any other state, or power whatsoever. Such an arrangement would, apparently, secure to them that personal independence, which at present seems to be altogether wanting.
61. C. V. art. 11.
62. L. V. Edi. 1794. c. 62.
63. C. V. art 9.
64. Mr. Jefferson, Mr. Pendleton, Mr. Wythe, Mr. George Mason, and Mr. Thomas Ludwell Lee, were appointed; but the three first only performed the duty assigned to them.
65. L. V. Oct. 1776. c. 3. Edi. 1785.
66. L. V. Edi, 1794. c. 62. Sess. acts of 1800, c. 59.
67. Oct. 1777, c. 6. and Oct. 1781, c. 24. Sessions acts.
68. Notes on Virginia, 228.
69. Notes on Virginia .... ad finem.
70. C. V. Art. 14. 15.
71. See V. L. 1788, c. 71. Sess. Acts.
72. Ibidem, Edi. 1785, p. 37.
73. See V. L. Edi. 1785, p. 81.
74. C. V. Art. 14.
75. C. V. Art. 16, 17.
76. The celebrated Montesquieu speaking of them says, "of the three powers above mentioned the JUDICIARY is next to nothing. Spirit of laws. Vol. 1. p. 186.
77. Montesquieu's Spirit of Laws, vol. 1. p. 181.
78. See Constitution of Massachusetts, chap. 2. sec. 1. art. 13.
79. Bill of Rights, art. 9. 10. 11. Constitution, art. 15. 16. 17.
80. The judges of the court of appeals, high court of chancery, and general court might assemble, and by joint ballot, recommend three persons to till any vacancy in the superior courts of chancery and general court, out of whom the governor, with the advice of council, might either appoint one, or nominate two to the general assembly, am! that body by joint ballot of both houses, chuse one. And in case of a vacancy in the court of appeals, the governor, with the advice of council, might nominate two judges of the high court of chancery, or general court, of whom one might be chosen by joint ballot of both houses of assembly. Elections made in this manner would probably be entitled to, and meet with universal approbation.
81. It would far exceed the limits of a note to suggest the many necessary improvements required in the county court system. I will nevertheless mention the outline of one, which would, if adopted, pave the way to the introduction of many more.
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.