Founding America_ Documents From the Revolution to the Bill of Rights Part 10

That as they (the Indians) maugre all the advice and admonition which could be given them at the commencemt; and during the prosecution of the War could not be restrained from acts of Hostility, but were determined to join their Arms to those of G Britain and to share their fortune; so, consequently, with a less generous People than Americans they would be made to share the same fate; and be compelld to retire along with them beyond the Lakes. But as we prefer Peace to a state of Warfare, as we consider them as a deluded People ; as we perswade ourselves that they are convinced, from experience, of their error in taking up the Hatchet against us, and that their true Interest and safety must now depend upon our friendship. As the Country, is large enough to contain us all; and as we are disposed to be kind to them and to partake of their Trade, we will from these considerations and from motives of Compn., draw a veil over what is past and establish a boundary line between them and us beyond which we will endeavor to restrain our People from Hunting or Settling, and within which they shall not come, but for the purposes of Trading, Treating, or other business unexceptionable in its nature.

In establishing this line, in the first instance, care should be taken neither to yield nor to grasp at too much. But to endeavor to impress the Indians with an idea of the generosity of our disposition to accommodate them, and with the necessity we are under, of providing for our Warriors, our Young People who are growing up, and strangers who are coming from other Countries to live among us. and if they should make a point of it, or appear dissatisfied at the line we may find it necessary to establish, compensation should be made them for their claims within it.

It is needless for me to express more explicitly because the tendency of my observns. evinces it is my opinion that if the Legislature of the State of New York should insist upon expelling the Six Nations from all the Country they Inhabited previous to the War, within their Territory (as General Schuyler seems to be apprehensive of ) that it will end in another Indian War. I have every reason to believe from my enquiries, and the information I have received, that they will not suffer their Country (if it was our policy to take it before we could settle it) to be wrested from them without another struggle. That they would compromise for a part of it I have very little doubt, and that it would be the cheapest way of coming at it, I have no doubt at all. The same observations, I am perswaded, will hold good with respect to Virginia, or any other state which has powerful Tribes of Indians on their Frontiers; and the reason of my mentioning New York is because General Schuyler has expressed his opinion of the temper of its Legislature; and because I have been more in the way of learning the Sentimts. of the Six Nations, than of any other Tribes of Indians on this Subject.

The limits being sufficiently extensive (in the New Ctry.) to comply with all the engagements of Government and to admit such emigrations as may be supposed to happen within a given time not only from the several States of the Union but from Foreign Countries, and moreover of such magnitude as to form a distinct and proper Government; a Proclamation in my opinion, should issue, making it Felony (if there is power for the purpose and if not imposing some very heavy restraint) for any person to Survey or Settle beyond the Line; and the Officers Commanding the Frontier Garrison should have pointed and peremptory orders to see that the Proclamation is carried into effect.

Measures of this sort would not only obtain Peace from the Indians, but would, in my opinion, be the surest means of preserving it. It would dispose of the Land to the best advantage; People the Country progressively, and check Land Jobbing and Monopolizing (which is now going forward with great avidity) while the door would be open, and the terms known for every one to obtain what is reasonable and proper for himself upon legal and const.i.tutional ground.

Every advantage that could be expected or even wished for would result from such a mode of proceedure: our Settlements would be compact, Government well established, and our Barrier formidable, not only for ourselves but against our Neighbours, and the Indians as has been observed in Genl Schuylers Letter will ever retreat as our Settlements advance upon them and they will be as ready to sell, as we are to buy; That it is the cheapest as well as the least distressing way of dealing with them, none who are acquainted with the Nature of Indian warfare, and has ever been at the trouble of estimating the expence of one, and comparing it with the cost of purchasing their Lands, will hesitate to acknowledge.

Unless some such measures as I have here taken the liberty of suggesting are speedily adopted one of two capital evils, in my opinion, will inevitably result, and is near at hand; either that the settling, or rather overspreading the Western Country will take place, by a parcel of Banditti, who will bid defiance to all Authority while they are skimming and disposing of the Cream of the Country at the expence of many suffering Officers and Soldiers who have fought and bled to obtain it, and are now waiting the decision of Congress to point them to the promised reward of their past dangers and toils, or a renewal of Hostilities with the Indians, brought about more than probably, by this very means.

How far agents for Indian Affrs. are indispensably necessary I shall not take upon me to decide; but if any should be appointed, their powers in my opinion should be circ.u.mscribed, accurately defined, and themselves rigidly punished for every infraction of them. A recurrence to the conduct of these People under the British Administration of Indian Affairs will manifest the propriety of this caution, as it will there be found, that self Interest was the principle by which their Agents were actuated; and to promote this by acc.u.mulating Lands and pa.s.sing large quant.i.ties of Goods thro their hands, the Indians were made to speak any language they pleased by their representation; were pacific or hostile as their purposes were most likely to be promoted by the one or the other. No purchase under any pretence whatever should be made by any other authority than that of the Sovereign power, or the Legislature of the State in which such Lands may happen to be. Nor should the Agents. be permitted directly or indirectly to trade; but to have a fixed, and ample Salary allowed them as a full compensation for their trouble.

Whether in practice the measure may answer as well as it appears in theory to me, I will not undertake to say; but I think, if the Indian Trade was carried on, on Government Acct., and with no greater advance than what would be necessary to defray the expence and risk, and bring in a small profit, that it would supply the Indians upon much better terms than they usually are; engross their Trade, and fix them strongly in our Interest; and would be a much better mode of treating them than that of giving presents; where a few only are benefitted by them. I confess there is a difficulty in getting a Man, or set of Men, in whose Abilities and integrity there can be a perfect reliance ; without which, the scheme is liable to such abuse as to defeat the salutary ends which are proposed from it. At any rate, no person should be suffered to Trade with the Indians without first obtaining a license, and giving security to conform to such rules and regulations as shall be prescribed; as was the case before the War.

In giving my Sentiments in the Month of May last (at the request of a Committee of Congress) on a Peace Establishmt. I took the liberty of suggesting the propriety, which in my opinion there appeared, of paying particular attention to the French and other Settlers at Detroit and other parts within the limits of the Western Country; the perusal of a late Pamphlet ent.i.tled "Observations on the Commerce of the American States with Europe and the West Indies" impresses the necessity of it more forcibly than ever on my Mind. The author of that Piece28 strongly recommends a liberal change in the Government of Canada, and tho' he is too sanguine in his expectations of the benefits arising from it, there can be no doubt of the good policy of the measure. It behooves us therefore to counteract them, by antic.i.p.ation. These People have a disposition towards us susceptible of favorable Impressions; but as no Arts will be left unattempted by the British to withdraw them from our Interest, the prest. moment should be employed by us to fix them in it, or we may loose them forever; and with them, the advantages, or disadvantages consequent of the choice they may make. From the best information and Maps of that Country, it would appear that from the Mouth of the Great Miami River wch. empties into the Ohio to its confluence with the Mad River, thence by a Line to the Miami Fort and Village on the other Miami River wch. empties into Lake Erie, and Thence by a Line to include the Settlement of Detroit would with Lake Erie to the No. ward Pensa. to the Eastwd. and the Ohio to the Soward form a Governmt. sufficiently extensive to fulfill all the public engagements, and to receive moreover a large population by Emigrants, and to confine The Settlement of the New States within these bounds would, in my opinion, be infinitely better even supposing no disputes were to happen with the Indians and that it was not necessary to guard against those other evils which have been enumerated than to suffer the same number of People to roam over a Country of at least 500,000 Square Miles contributing nothing to the support, but much perhaps to the Embarra.s.sment of the Federal Government. strongly recommends a liberal change in the Government of Canada, and tho' he is too sanguine in his expectations of the benefits arising from it, there can be no doubt of the good policy of the measure. It behooves us therefore to counteract them, by antic.i.p.ation. These People have a disposition towards us susceptible of favorable Impressions; but as no Arts will be left unattempted by the British to withdraw them from our Interest, the prest. moment should be employed by us to fix them in it, or we may loose them forever; and with them, the advantages, or disadvantages consequent of the choice they may make. From the best information and Maps of that Country, it would appear that from the Mouth of the Great Miami River wch. empties into the Ohio to its confluence with the Mad River, thence by a Line to the Miami Fort and Village on the other Miami River wch. empties into Lake Erie, and Thence by a Line to include the Settlement of Detroit would with Lake Erie to the No. ward Pensa. to the Eastwd. and the Ohio to the Soward form a Governmt. sufficiently extensive to fulfill all the public engagements, and to receive moreover a large population by Emigrants, and to confine The Settlement of the New States within these bounds would, in my opinion, be infinitely better even supposing no disputes were to happen with the Indians and that it was not necessary to guard against those other evils which have been enumerated than to suffer the same number of People to roam over a Country of at least 500,000 Square Miles contributing nothing to the support, but much perhaps to the Embarra.s.sment of the Federal Government.

Was it not for the purpose of comprehending the Settlement of Detroit within the Jurisdn. of the New Governmt a more compact and better shaped district for a State would be for the line to proceed from the Miami Fort and Village along the River of that name to Lake Erie. leaving In that case the Settlement of Detroit, and all the Territory No. of the Rivers Miami and St. Josephs between the Lakes Erie, St. Clair, Huron, and Michigan to form, hereafter, another State equally large compact and water bounded.

At first view, it may seem a little extraneous, when I am called upon to give an opinion upon the terms of a Peace proper to be made with the Indians, that I should go into the formation of New States; but the Settlemt. of the Western Country and making a Peace with the Indians are so a.n.a.logous that there can be no definition of the one without involving considerations of the other. for I repeat it, again, and I am clear in my opinion, that policy and conomy point very strongly to the expediency of being upon good terms with the Indians, and the propriety of purchasing their Lands in preference to attempting to drive them by force of arms out of their Country; which as we have already experienced is like driving the Wild Beasts of the Forest which will return us soon as the pursuit is at an end and fall perhaps on those that are left there; when the gradual extension of our Settlements will as certainly cause the Savage as the Wolf to retire; both being beasts of prey tho' they differ in shape. In a word there is nothing to be obtained by an Indian War but the Soil they live on and this can be had by purchase at less expence, and without that bloodshed, and those distresses which helpless Women and Children are made partakers of in all kinds of disputes with them.

If there is any thing in these thoughts (which I have fully and freely communicated) worthy attention I shall be happy and am Sir Yr. etc.

P. S. A formal Address, and memorial from the Oneida Indians when I was on the Mohawk River, setting forth their Grievances and distresses and praying relief, induced me to order a pound of Powder and 3 lbs. of Lead to be issued to each Man, from the Military Magazines in the care of Colo. Willet; this, I presume, was unknown to Genl. Schuyler at the time he recommended the like measure in his Letter to Congress.

-George Washington- FAREWELL ADDRESS TO THE ARMIES OF THE.

UNITED STATES.

NOVEMBER 2, 1783.

ROCK HILL, NEAR PRINCETON, NOVEMBER 2, 1783.

THE UNITED STATES IN Congress a.s.sembled after giving the most honorable testimony to the merits of the fderal Armies, and presenting them with the thanks of their Country for their long, eminent, and faithful services, having thought proper by their proclamation bearing date the 18th. day of October last. to discharge such part of the Troops as were engaged for the war, and to permit the Officers on furlough to retire from service from and after tomorrow ; which proclamation having been communicated in the publick papers for the information and government of all concerned ; it only remains for the Comdr in Chief to address himself once more, and that for the last time, to the Armies of the U States (however widely dispersed the individuals who compose them may be) and to bid them an affectionate, a long farewell.

But before the Comdr in Chief takes his final leave of those he holds most dear, he wishes to indulge himself a few moments in calling to mind a slight review of the past. He will then take the liberty of exploring, with his military friends, their future prospects, of advising the general line of conduct, which in his opinion, ought to be pursued, and he will conclude the Address by expressing the obligations he feels himself under for the spirited and able a.s.sistance he has experienced from them in the performance of an arduous Office.

A contemplation of the compleat attainment (at a period earlier than could have been expected) of the object for which we contended against so formidable a power cannot but inspire us with astonishment and grat.i.tude. The disadvantageous circ.u.mstances on our part, under which the war was undertaken, can never be forgotten. The singular interpositions of Providence in our feeble condition were such, as could scarcely escape the attention of the most un.o.bserving; while the unparalleled perseverence of the Armies of the U States, through almost every possible suffering and discouragement for the s.p.a.ce of eight long years, was little short of a standing miracle.

It is not the meaning nor within the compa.s.s of this address to detail the hardships peculiarly incident to our service, or to describe the distresses, which in several instances have resulted from the extremes of hunger and nakedness, combined with the rigours of an inclement season; nor is it necessary to dwell on the dark side of our past affairs. Every American Officer and Soldier must now console himself for any unpleasant circ.u.mstances which may have occurred by a recollection of the uncommon scenes in which he has been called to Act no inglorious part, and the astonishing events of which he has been a witness, events which have seldom if ever before taken place on the stage of human action, nor can they probably ever happen again. For who has before seen a disciplined Army form'd at once from such raw materials? Who, that was not a witness, could imagine that the most violent local prejudices would cease so soon, and that Men who came from the different parts of the Continent, strongly disposed, by the habits of education, to despise and quarrel with each other, would instantly become but one patriotic band of Brothers, or who, that was not on the spot, can trace the steps by which such a wonderful revolution has been effected, and such a glorious period put to all our warlike toils?

It is universally acknowledged, that the enlarged prospects of happiness, opened by the confirmation of our independence and sovereignty, almost exceeds the power of description. And shall not the brave men, who have contributed so essentially to these inestimable acquisitions, retiring victorious from the field of War to the field of agriculture, partic.i.p.ate in all the blessings which have been obtained; in such a republic, who will exclude them from the rights of Citizens and the fruits of their labour. In such a Country, so happily circ.u.mstanced, the pursuits of Commerce and the cultivation of the soil will unfold to industry the certain road to competence. To those hardy Soldiers, who are actuated by the spirit of adventure the Fisheries will afford ample and profitable employment, and the extensive and fertile regions of the West will yield a most happy asylum to those, who, fond of domestic enjoyments are seeking for personal independence. Nor is it possible to conceive, that any one of the U States will prefer a national bankruptcy and a dissolution of the union, to a compliance with the requisitions of Congress and the payment of its just debts; so that the Officers and Soldiers may expect considerable a.s.sistance in recommencing their civil occupations from the sums due to them from the public, which must and will most inevitably be paid.

In order to effect this desirable purpose and to remove the prejudices which may have taken possession of the minds of any of the good people of the States, it is earnestly recommended to all the Troops that with strong attachments to the Union, they should carry with them into civil society the most conciliating dispositions; and that they should prove themselves not less virtuous and useful as Citizens, than they have been persevering and victorious as Soldiers. What tho, there should be some envious individuals who are unwilling to pay the debt the public has contracted, or to yield the tribute due to merit; yet, let such unworthy treatment produce no invective or any instance of intemperate conduct; let it be remembered that the unbia.s.sed voice of the free Citizens of the United States has promised the just reward, and given the merited applause; let it be known and remembered, that the reputation of the fderal Armies is established beyond the reach of malevolence; and let a consciousness of their achievements and fame still incite the men, who composed them to honourable actions; under the persuasion that the private virtues of conomy, prudence, and industry, will not be less amiable in civil life, than the more splendid qualities of valour, perseverance, and enterprise were in the Field. Every one may rest a.s.sured that much, very much of the future happiness of the Officers and Men will depend upon the wise and manly conduct which shall be adopted by them when they are mingled with the great body of the community. And, altho the General has so frequently given it as his opinion, in the most public and explicit manner, that, unless the principles of the federal government were properly supported and the powers of the union increased, the honour, dignity, and justice of the nation would be lost forever. Yet he cannot help repeating, on this occasion, so interesting a sentiment, and leaving it as his last injunction to every Officer and every Soldier, who may view the subject in the same serious point of light, to add his best endeavours to those of his worthy fellow Citizens towards effecting these great and valuable purposes on which our very existence as a nation so materially depends.

The Commander in chief conceives little is now wanting to enable the Soldier to change the military character into that of the Citizen, but that steady and decent tenor of behaviour which has generally distinguished, not only the Army under his immediate command, but the different detachments and seperate Armies through the course of the war. From their good sense and prudence he antic.i.p.ates the happiest consequences; and while he congratulates them on the glorious occasion, which renders their services in the field no longer necessary, he wishes to express the strong obligations he feels himself under for the a.s.sistance he has received from every Cla.s.s, and in every instance. He presents his thanks in the most serious and affectionate manner to the General Officers, as well for their counsel on many interesting occasions, as for their Ardor in promoting the success of the plans he had adopted. To the Commandants of Regiments and Corps, and to the other Officers for their great zeal and attention, in carrying his orders promptly into execution. To the Staff, for their alacrity and exactness in performing the Duties of their several Departments. And to the Non Commissioned Officers and private Soldiers, for their extraordinary patience in suffering, as well as their invincible fort.i.tude in Action. To the various branches of the Army the General takes this last and solemn opportunity of professing his inviolable attachment and friendship. He wishes more than bare professions were in his power, that he were really able to be useful to them all in future life. He flatters himself however, they will do him the justice to believe, that whatever could with propriety be attempted by him has been done, and being now to conclude these his last public Orders, to take his ultimate leave in a short time of the military character, and to bid a final adieu to the Armies he has so long had the honor to Command, he can only again offer in their behalf his recommendations to their grateful country, and his prayers to the G.o.d of Armies. May ample justice be done them here, and may the choicest of heaven's favours, both here and hereafter, attend those who, under the devine auspices, have secured innumerable blessings for others; with these wishes, and this benediction, the Commander in Chief is about to retire from Service. The Curtain of seperation will soon be drawn, and the military scene to him will be closed for ever.

POLITICAL REFORMERS.

Thomas Jefferson: Excerpts from Notes on the States of Virginia (1784) (1784) Query XIII (excerpt)The const.i.tution of the State and its several characters? PAGE 263 PAGE 263 Query XIV (excerpt)The administration of justice and the description of the laws? PAGE 275 PAGE 275 Query XVII (excerpt)The different religions received into that State? PAGE 287 PAGE 287 Query XVII I (excerpt)The particular customs and manners that may happen to be received in that State? PAGE 291 PAGE 291Query XIX (excerpt)The present state of manufactures, commerce, interior and exterior trade? PAGE 293

James Madison: A Memorial and Remonstrance against Religious a.s.sessments (June 20, 1785) PAGE 294 (June 20, 1785) PAGE 294 Thomas Jefferson: Virginia Statute for Religious Freedom (January 16, 1786) PAGE 301 After writing the Declaration of Independence, Jefferson spent most of the Revolutionary War back in Virginia. There, at the fall 1776 session of the state legislature, he first met James Madison, eight years his junior and equally dedicated to many of the projects for reform that Jefferson tried to incorporate in a revised code of Virginia laws that he drafted in the late 1770s. In 1780, while Jefferson was serving as governor, Madison began an extended term as a congressional delegate. Three years later, when the term-limits provision of the Articles of Confederation sent Madison back to Virginia, the widowed Jefferson briefly served in Congress, then sailed to Europe as the new American minister to France. In Europe, Jefferson arranged for the private publication of his only book, Notes on the State of Virginia, Virginia, which he originally began to compile as a set of answers to queries about America from a French diplomat. Meanwhile Madison was elected to the Virginia a.s.sembly, where he quickly took a leading role. Among his projects was persuading the a.s.sembly to take up the revised legislative code that Jefferson had drafted back in the 1770s. which he originally began to compile as a set of answers to queries about America from a French diplomat. Meanwhile Madison was elected to the Virginia a.s.sembly, where he quickly took a leading role. Among his projects was persuading the a.s.sembly to take up the revised legislative code that Jefferson had drafted back in the 1770s.

Jefferson used his Notes on Virginia Virginia to discuss some of his favorite ideas and projects for reform, including the need to revise the state's hastily drafted const.i.tution of 1776; to encourage gradual emanc.i.p.ation of its hundreds of thousands of African-American slaves; to promote the cause of religious freedom; and to encourage public education. Madison supported many of these projects, and in 1784 circ.u.mstances conspired to enable him to move forward on the one cause to which he and Jefferson were most deeply committed: the separation of church and state. The occasion was the introduction of a bill, supported by Patrick Henry, to provide a general public subsidy to all teachers (ministers) of the Christian religion. The measure would enable all of Virginia's churches to recover from the ravages and impoverishment of the war. But the idea of a subsidy violated not only Madison's notion of conscience, but also the beliefs of radical Protestant sects, such as the Baptists, who opposed public support for religion in general. Madison drafted his to discuss some of his favorite ideas and projects for reform, including the need to revise the state's hastily drafted const.i.tution of 1776; to encourage gradual emanc.i.p.ation of its hundreds of thousands of African-American slaves; to promote the cause of religious freedom; and to encourage public education. Madison supported many of these projects, and in 1784 circ.u.mstances conspired to enable him to move forward on the one cause to which he and Jefferson were most deeply committed: the separation of church and state. The occasion was the introduction of a bill, supported by Patrick Henry, to provide a general public subsidy to all teachers (ministers) of the Christian religion. The measure would enable all of Virginia's churches to recover from the ravages and impoverishment of the war. But the idea of a subsidy violated not only Madison's notion of conscience, but also the beliefs of radical Protestant sects, such as the Baptists, who opposed public support for religion in general. Madison drafted his Memorial and Remonstrance against Religious a.s.sessments Memorial and Remonstrance against Religious a.s.sessments as a pet.i.tion against the general a.s.sessment bill. Along with other pet.i.tions circulated by the Baptists and others, the a.s.sembly was put on notice concerning the unpopularity of a general a.s.sessment. The bill was defeated, and in the wake of its defeat, Madison easily secured pa.s.sage of Jefferson's Statute for Religious Freedom, requiring the effective disestablishment of religion in the nation's most populous province. as a pet.i.tion against the general a.s.sessment bill. Along with other pet.i.tions circulated by the Baptists and others, the a.s.sembly was put on notice concerning the unpopularity of a general a.s.sessment. The bill was defeated, and in the wake of its defeat, Madison easily secured pa.s.sage of Jefferson's Statute for Religious Freedom, requiring the effective disestablishment of religion in the nation's most populous province.

-Thomas Jefferson- NOTES ON THE STATE OF VIRGINIA (EXCERPTS).

1784.

Query XIII (excerpt) The const.i.tution of the State and its several characters?

... IT IS UNNECESSARY, HOWEVER, to glean up the several instances of injury, as scattered through American and British history, and the more especially as, by pa.s.sing on to the accession of the present king, we shall find specimens of them all, aggravated, multiplied and crowded within a small compa.s.s of time, so as to evince a fixed design of considering our rights natural, conventional and chartered as mere nullities. The following is an epitome of the first sixteen years of his reign: The colonies were taxed internally and externally; their essential interests sacrificed to individuals in Great Britain; their legislatures suspended; charters annulled; trials by juries taken away; their persons subjected to transportation across the Atlantic, and to trial before foreign judicatories; their supplications for redress thought beneath answer; themselves published as cowards in the councils of their mother country and courts of Europe ; armed troops sent among them to enforce submission to these violences; and actual hostilities commenced against them. No alternative was presented but resistance, or unconditional submission. Between these could be no hesitation. They closed in the appeal to arms. They declared themselves independent states. They confederated together into one great republic; thus securing to every State the benefit of an union of their whole force. In each State separately a new form of government was established. Of ours particularly the following are the outlines: The executive powers are lodged in the hands of a governor, chosen annually, and incapable of acting more then three years in seven. He is a.s.sisted by a council of eight members. The judiciary powers are divided among several courts, as will be hereafter explained. Legislation is exercised by two houses of a.s.sembly, the one called the house of Delegates, composed of two members from each county, chosen annually by the citizens, possessing an estate for life in one hundred acres of uninhabited land, or twenty-five acres with a house on it, or in a house or lot in some town: the other called the Senate, consisting of twenty-four members, chosen quadrenially by the same electors, who for this purpose are distributed into twenty-four districts. The concurrence of both houses is necesary to the pa.s.sage of a law. They have the appointment of the governor and council, the judges of the superior courts, auditors, attorney-general, treasurer, register of the land office, and delegates to Congress. As the dismemberment of the State had never had its confirmation, but, on the contrary, had always been the subject of protestation and complaint, that it might never be in our own power to raise scruples on that subject, or to disturb the harmony of our new confederacy, the grants to Maryland, Pennsylvania, and the two Carolinas, were ratified.

This const.i.tution was formed when we were new and unexperienced in the science of government. It was the first, too, which was formed in the whole United States. No wonder then that time and trial have discovered very capital defects in it.

1. The majority of the men in the State, who pay and fight for its support, are unrepresented in the legislature, the roll of freeholders ent.i.tled to vote not including generally the half of those on the roll of the militia, or of the tax-gatherers.

2. Among those who share the representation, the shares are very unequal. Thus the county of Warwick, with only one hundred fighting men, has an equal representation with the county of Loudon, which has one thousand seven hundred and forty-six. So that every man in Warwick has as much influence in the government as seventeen men in Loudon. But lest it should be thought that an equal interspersion of small among large counties, through the whole State, may prevent any danger of injury to particular parts of it, we will divide it into districts, and show the proportions of land, of fighting men, and of representation in each: [image]

An inspection of this table will supply the place of commentaries 29 29 on it. It will appear at once that nineteen thousand men, living below the falls of the rivers, possess half the senate, and want four members only of possessing a majority of the house of delegates; a want more than supplied by the vicinity of their situation to the seat of government, and of course the greater degree of convenience and punctuality with which their members may and will attend in the legislature. These nineteen thousand, therefore, living in one part of the country, give law to upwards of thirty thousand living in another, and appoint all their chief officers, executive and judiciary. From the difference of their situation and circ.u.mstances, their interests will often be very different. on it. It will appear at once that nineteen thousand men, living below the falls of the rivers, possess half the senate, and want four members only of possessing a majority of the house of delegates; a want more than supplied by the vicinity of their situation to the seat of government, and of course the greater degree of convenience and punctuality with which their members may and will attend in the legislature. These nineteen thousand, therefore, living in one part of the country, give law to upwards of thirty thousand living in another, and appoint all their chief officers, executive and judiciary. From the difference of their situation and circ.u.mstances, their interests will often be very different. 30 30 3. The senate is, by its const.i.tution, too h.o.m.ogenous with the house of delegates. Being chosen by the same electors, at the same time, and out of the same subjects, the choice falls of course on men of the same description. The purpose of establishing different houses of legislation is to introduce the influence of different interests or different principles. Thus in Great Britain it is said their const.i.tution relies on the house of commons for honesty, and the lords for wisdom; which would be a rational reliance, if honesty were to be bought with money, and if wisdom were hereditary. In some of the American States, the delegates and senators are so chosen, as that the first represent the persons, and the second the property of the State. But with us, wealth and wisdom have equal chance for admission into both houses. We do not, therefore, derive from the separation of our legislature into two houses, those benefits which a proper complication of principles are capable of producing, and those which alone can compensate the evils which may be produced by their dissensions.

4. All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention which pa.s.sed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislative, for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature a.s.sumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can it be ef fectual ; because in that case they may put their proceedings into the form of an act of a.s.sembly, which will render them obligatory on the other branches. They have, accordingly, in many instances, decided rights which should have been left to judiciary controversy; and the direction of the executive, during the whole time of their session, is becoming habitual and familiar. And this is done with no ill intention. The views of the present members are perfectly upright. When they are led out of their regular province, it is by art in others, and inadvertence in themselves. And this will probably be the case for some time to come. But it will not be a very long time. Mankind soon learn to make interested uses of every right and power which they possess, or may a.s.sume. The public money and public liberty, intended to have been deposited with three branches of magistracy, but found inadvertently to be in the hands of one only, will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished, too, by this tempting circ.u.mstance, that they are the instrument, as well as the object of acquisition. With money we will get men, said Caesar, and with men we will get money. Nor should our a.s.sembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes. The time to guard against corruption and tyranny, is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered. To render these considerations the more cogent, we must observe in addition: 5. That the ordinary legislature may alter the const.i.tution itself. On the discontinuance of a.s.semblies, it became necessary to subst.i.tute in their place some other body, competent to the ordinary business of government, and to the calling forth the powers of the State for the maintenance of our opposition to Great Britain. Conventions were therefore introduced, consisting of two delegates from each county, meeting together and forming one house, on the plan of the former house of burgesses, to whose places they succeeded. These were at first chosen anew for every particular session. But in March 1775, they recommended to the people to choose a convention, which should continue in office a year. This was done, accordingly, in April 1775, and in the July following that convention pa.s.sed an ordinance for the election of delegates in the month of April annually. It is well known, that in July 1775, a separation from Great Britain and establishment of republican government, had never yet entered into any person's mind. A convention, therefore, chosen under that ordinance, cannot be said to have been chosen for the purposes which certainly did not exist in the minds of those who pa.s.sed it. Under this ordinance, at the annual election in April 1776, a convention for the year was chosen. Independence, and the establishment of a new form of government, were not even yet the objects of the people at large. One extract from the pamphlet called Common Sense had appeared in the Virginia papers in February, and copies of the pamphlet itself had got in a few hands. But the idea had not been opened to the ma.s.s of the people in April, much less can it be said that they had made up their minds in its favor.

So that the electors of April 1776, no more than the legislators of July 1775, not thinking of independence and a permanent republic, could not mean to vest in these delegates powers of establishing them, or any authorities other than those of the ordinary legislature. So far as a temporary organization of government was necessary to render our opposition energetic, so far their organization was valid. But they received in their creation no power but what were given to every legislature before and since. They could not, therefore, pa.s.s an act transcendent to the powers of other legislatures. If the present a.s.sembly pa.s.s an act, and declare it shall be irrevocable by subsequent a.s.semblies, the declaration is merely void, and the act repeal-able, as other acts are. So far, and no farther authorized, they organized the government by the ordinance ent.i.tled a const.i.tution or form of government. It pretends to no higher authority than the other ordinances of the same session; it does not say that it shall be perpetual; that it shall be unalterable by other legislatures; that it shall be transcendent above the powers of those who they knew would have equal power with themselves. Not only the silence of the instrument is a proof they thought it would be alterable, but their own practice also; for this very convention, meeting as a house of delegates in general a.s.sembly with the Senate in the autumn of that year, pa.s.sed acts of a.s.sembly in contradiction to their ordinance of government; and every a.s.sembly from that time to this has done the same. I am safe, therefore, in the position that the const.i.tution itself is alterable by the ordinary legislature. Though this opinion seems founded on the first elements of common sense, yet is the contrary maintained by some persons. 1. Because, say they, the conventions were vested with every power necessary to make effectual opposition to Great Britain. But to complete this argument, they must go on, and say further, that effectual opposition could not be made to Great Britain without establishing a form of government perpetual and unalterable by the legislature; which is not true. An opposition which at some time or other was to come to an end, could not need a perpetual inst.i.tution to carry it on; and a government amendable as its defects should be discovered, was as likely to make effectual resistance, as one that should be unalterably wrong. Besides, the a.s.semblies were as much vested with all powers requisite for resistance as the conventions were. If, therefore, these powers included that of modelling the form of government in the one case, they did so in the other. The a.s.semblies then as well as the conventions may model the government; that is, they may alter the ordinance of government. 2. They urge, that if the convention had meant that this instrument should be alterable, as their other ordinances were, they would have called it an ordinance; but they have called it a const.i.tution, which, ex vi termini, means "an act above the power of the ordinary legislature." I answer that const.i.tutio, const.i.tutium, statutum const.i.tutio, const.i.tutium, statutum, lex, lex, are convertible terms. are convertible terms. "Const.i.tutio "Const.i.tutio dicitur jus quod a principe conditure." "Const.i.tutium, quod ab imperatoribus rescriptum statutumve est." dicitur jus quod a principe conditure." "Const.i.tutium, quod ab imperatoribus rescriptum statutumve est." "Statutum, "Statutum, idem quod lex." Calvini Lexicon juridic.u.m. Const.i.tution and statute were originally terms of the idem quod lex." Calvini Lexicon juridic.u.m. Const.i.tution and statute were originally terms of the31 civil law, and from thence introduced by ecclesiastics into the English law. Thus in the statute 25 Hen. VIII. c. 19, . 1, civil law, and from thence introduced by ecclesiastics into the English law. Thus in the statute 25 Hen. VIII. c. 19, . 1, "Const.i.tutions "Const.i.tutions and ordinances" are used as synonymous. The term const.i.tution has many other significations in physics and politics; but in jurisprudence, whenever it is applied to any act of the legislature, it invariably means a statute, law, or ordinance, which is the present case. No inference then of a different meaning can be drawn from the adoption of this t.i.tle; on the contrary, we might conclude that, by their affixing to it a term synonymous with ordinance or statute. But of what consequence is their meaning, where their power is denied? If they meant to do more than they had power to do, did this give them power? It is not the name, but the authority that renders an act obligatory. Lord c.o.ke says, "an article of the statute, 11 R. II. c. 5, that no person should attempt to revoke any ordinance then made, is repealed, for that such restrainst is against the jurisdiction and power of the parliament." 4. Inst. 42. And again, "though divers parliaments have attempted to restrain subsequent parliaments, yet could they never effect it; for the latter parliament hath ever power to abrogate, suspend, qualify, explain, or make void the former in the whole or in any part thereof, notwithstanding any words of restraint, prohibition, or penalty, in the former; for it is a maxim in the laws of the parliament, quod leges posteriores priores contrarias abrogant. " 4. Inst. 43. To get rid of the magic supposed to be in the word const.i.tution, let us translate it into its definition as given by those who think it above the power of the law; and let us suppose the convention, instead of saying, "We the ordinary legislature, establish a const.i.tution, " had said, "We the ordinary legislature, establish an act and ordinances" are used as synonymous. The term const.i.tution has many other significations in physics and politics; but in jurisprudence, whenever it is applied to any act of the legislature, it invariably means a statute, law, or ordinance, which is the present case. No inference then of a different meaning can be drawn from the adoption of this t.i.tle; on the contrary, we might conclude that, by their affixing to it a term synonymous with ordinance or statute. But of what consequence is their meaning, where their power is denied? If they meant to do more than they had power to do, did this give them power? It is not the name, but the authority that renders an act obligatory. Lord c.o.ke says, "an article of the statute, 11 R. II. c. 5, that no person should attempt to revoke any ordinance then made, is repealed, for that such restrainst is against the jurisdiction and power of the parliament." 4. Inst. 42. And again, "though divers parliaments have attempted to restrain subsequent parliaments, yet could they never effect it; for the latter parliament hath ever power to abrogate, suspend, qualify, explain, or make void the former in the whole or in any part thereof, notwithstanding any words of restraint, prohibition, or penalty, in the former; for it is a maxim in the laws of the parliament, quod leges posteriores priores contrarias abrogant. " 4. Inst. 43. To get rid of the magic supposed to be in the word const.i.tution, let us translate it into its definition as given by those who think it above the power of the law; and let us suppose the convention, instead of saying, "We the ordinary legislature, establish a const.i.tution, " had said, "We the ordinary legislature, establish an act above the power of the ordinary legislature above the power of the ordinary legislature. " Does not this expose the absurdity of the attempt? 3. But, say they, the people have acquiesced, and this has given it an authority superior to the laws. It is true that the people did not rebel against it; and was that a time for the people to rise in rebellion? Should a prudent acquiescence, at a critical time, be construed into a confirmation of every illegal thing done during that period? Besides, why should they rebel? At an annual election they had chosen delegates for the year, to exercise the ordinary powers of legislation, and to manage the great contest in which they were engaged. These delegates thought the contest would be best managed by an organized government. They therefore, among others, pa.s.sed an ordinance of government. They did not presume to call it perpetual and unalterable. They well knew they had no power to make it so; that our choice of them had been for no such purpose, and at a time when we could have no such purpose in contemplation. Had an unalterable form of government been meditated, perhaps we should have chosen a different set of people. There was no cause then for the people to rise in rebellion. But to what dangerous lengths will this argument lead? Did the acquiescence of the colonies under the various acts of power exercised by Great Britain in our infant State, confirm these acts, and so far invest them with the authority of the people as to render them unalterable, and our present resistance wrong? On every unauthoritative exercise of power by the legislature must the people rise in rebellion, or their silence be construed into a surrender of that power, to them? If so, how many rebellions should we have had already? One certainly for every session of a.s.sembly. The other States in the union have been of opinion that to render a form of government unalterable by ordinary acts of a.s.sembly, the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments. The individuals then who maintain the contrary opinion in this country, should have the modesty to suppose it possible that they may be wrong, and the rest of America right. But if there be only a possibility of their being wrong, if only a plausible doubt remains of the validity of the ordinance of government, is it not better to remove that doubt by placing it on a bottom which none will dispute? If they be right we shall only have the unnecessary trouble of meeting once in convention. If they be wrong, they expose us to the hazard of having no fundamental rights at all. True it is, this is no time for deliberating on forms of government. While an enemy is within our bowels, the first object is to expel him. But when this shall be done, when peace shall be established, and leisure given us for intrenching within good forms, the rights for which we have bled, let no man be found indolent enough to decline a little more trouble for placing them beyond the reach of question. If anything more be requisite to produce a conviction of the expediency of calling a convention at a proper season to fix our form of government, let it be the reflection: 6. That the a.s.sembly exercises a power of determining the quorum of their own body which may legislate for us. After the establishment of the new form they adhered to the Lex majoris partis, founded in common law as well as common right. It is the natural law of every a.s.sembly of men, whose numbers are not fixed by any other law. They continued for some time to require the presence of a majority of their whole number, to pa.s.s an act. But the British parliament fixes its own quorum; our former a.s.semblies fixed their own quorum; and one precedent in favor of power is stronger than an hundred against it. The house of delegates, therefore, have32 lately voted that, during the present dangerous invasion, forty members shall be a house to proceed to business. They have been moved to this by the fear of not being able to collect a house. But this danger could not authorize them to call that a house which was none; and if they may fix it at one number, they may at another, till it loses its fundamental character of being a representative body. As this vote expires with the present invasion, it is probable the former rule will be permitted to revive; because at present no ill is meant. The power, however, of fixing their own quorum has been avowed, and a precedent set. From forty it may be reduced to four, and from four to one; from a house to a committee, from a committee to a chairman or speaker, and thus an oligarchy or monarchy be subst.i.tuted under forms supposed to be regular. "Omnia mala exempla ex bonis orta sunt; sed ubi imperium ad ignaros aut minus bonos pervenit, novum illud exemplum ab dignis et idoneis adindignos et non idoneos fertur. " When, therefore, it is considered, that there is no legal obstacle to the a.s.sumption by the a.s.sembly of all the powers legislative, executive, and judiciary, and that these may come to the hands of the smallest rag of delegation, surely the people will say, and their representatives, while yet they have honest representatives, will advise them to say, that they will not acknowledge as laws any acts not considered and a.s.sented to by the major part of their delegates. lately voted that, during the present dangerous invasion, forty members shall be a house to proceed to business. They have been moved to this by the fear of not being able to collect a house. But this danger could not authorize them to call that a house which was none; and if they may fix it at one number, they may at another, till it loses its fundamental character of being a representative body. As this vote expires with the present invasion, it is probable the former rule will be permitted to revive; because at present no ill is meant. The power, however, of fixing their own quorum has been avowed, and a precedent set. From forty it may be reduced to four, and from four to one; from a house to a committee, from a committee to a chairman or speaker, and thus an oligarchy or monarchy be subst.i.tuted under forms supposed to be regular. "Omnia mala exempla ex bonis orta sunt; sed ubi imperium ad ignaros aut minus bonos pervenit, novum illud exemplum ab dignis et idoneis adindignos et non idoneos fertur. " When, therefore, it is considered, that there is no legal obstacle to the a.s.sumption by the a.s.sembly of all the powers legislative, executive, and judiciary, and that these may come to the hands of the smallest rag of delegation, surely the people will say, and their representatives, while yet they have honest representatives, will advise them to say, that they will not acknowledge as laws any acts not considered and a.s.sented to by the major part of their delegates.

In enumerating the defects of the const.i.tution, it would be wrong to count among them what is only the error of particular persons. In December 1776, our circ.u.mstances being much distressed, it was proposed in the house of delegates to create a dictator, invested with every power legislative, executive, and judiciary, civil and military, of life and of death, over our persons and over our properties; and in June 1781, again under calamity, the same proposition was repeated, and wanted a few votes only of being pa.s.sed. One who entered into this contest from a pure love of liberty, and a sense of injured rights, who determined to make every sacrifice, and to meet every danger, for the re-establishment of those rights on a firm basis, who did not mean to expend his blood and substance for the wretched purpose of changing this matter for that, but to place the powers of governing him in a plurality of hands of his own choice, so that the corrupt will of no one man might in future oppress him, must stand confounded and dismayed when he is told, that a considerable portion of that plurality had mediated the surrender of them into a single hand, and, in lieu of a limited monarchy, to deliver him over to a despotic one! How must we find his efforts and sacrifices abused and baffled, if he may still, by a single vote, be laid prostrate at the feet of one man! In G.o.d's name, from whence have they derived this power? Is it from our ancient laws? None such can be produced. Is it from any principle in our new const.i.tution expressed or implied? Every lineament expressed or implied, is in full opposition to it. Its fundamental principle is, that the State shall be governed as a commonwealth. It provides a republican organization, proscribes under the name of prerogative the exercise of all powers undefined by the laws; places on this basis the whole system of our laws; and by consolidating them together, chooses that they should be left to stand or fall together, never providing for any circ.u.mstances, nor admitting that such could arise, wherein either should be suspended; no, not for a moment. Our ancient laws expressly declare, that those who are but delegates themselves shall not delegate to others powers which require judgment and integrity in their exercise. Or was this proposition moved on a supposed right in the movers, of abandoning their posts in a moment of distress? The same laws forbid the abandonment of that post, even on ordinary occasions; and much more a transfer of their powers into other hands and other forms, without consulting the people. They never admit the idea that these, like sheep or cattle, may be given from hand to hand without an appeal to their own will. Was it from the necessity of the case? Necessities which dissolve a government, do not convey its authority to an oligarchy or a monarchy. They throw back, into the hands of the people, the powers they had delegated, and leave them as individuals to shift for themselves. A leader may offer, but not impose himself, nor be imposed on them. Much less can their necks be submitted to his sword, their breath to be held at his will or caprice. The necessity which should operate these tremendous effects should at least be palpable and irresistible. Yet in both instances, where it was feared, or pretended with us, it was belied by the event. It was belied, too, by the preceding experience of our sister States, several of whom had grappled through greater difficulties without abandoning their forms of government. When the proposition was first made, Ma.s.sachusetts had found even the government of committees sufficient to carry them through an invasion. But we at the time of that proposition, were under no invasion. When the second was made, there had been added to this example those of Rhode Island, New York, New Jersey, and Pennsylvania, in all of which the republican form had been found equal to the task of carrying them through the severest trials. In this State alone did there exist so little virtue, that fear was to be fixed in the hearts of the people, and to become the motive of their exertions, and principle of their government? The very thought alone was treason against the people; was treason against mankind in general; as rivetting forever the chains which bow down their necks, by giving to their oppressors a proof, which they would have trumpeted through the universe, of the imbecility of republican government, in times of pressing danger, to shield them from harm. Those who a.s.sume the right of giving away the reins of government in any case, must be sure that the herd, whom they hand on to the rods and hatchet of the dictator, will lay their necks on the block when he shall nod to them. But if our a.s.semblies supposed such a recognition in the people, I hope they mistook their character. I am of opinion, that the government, instead of being braced and invigorated for greater exertions under their difficulties, would have been thrown back upon the bungling machinery of county committees for administration, till a convention could have been called, and its wheels again set into regular motion. What a cruel moment was this for creating such an embarra.s.sment, for putting to the proof the attachment of our countrymen to republican government! Those who meant well, of the advocates of this measure, (and most of them meant well, for I know them personally, had been their fellow-laborer in the common cause, and had often proved the purity of their principles,) had been seduced in their judgment by the example of an ancient republic, whose const.i.tution and circ.u.mstances were fundamentally different. They had sought this precedent in the history of Rome, where alone it was to be found, and where at length, too, it had proved fatal. They had taken it from a republic rent by the most bitter factions and tumults, where the government was of a heavy-handed unfeeling aristocracy, over a people ferocious, and rendered desperate by poverty and wretchedness; tumults which could not be allayed under the most trying circ.u.mstances, but by the omnipotent hand of a single despot. Their const.i.tution, therefore, allowed a temporary tyrant to be erected, under the name of a dictator; and that temporary tyrant, after a few examples, became perpetual. They misapplied this precedent to a people mild in their dispositions, patient under their trial, united for the public liberty, and affectionate to their leaders. But if from the const.i.tution of the Roman government there resulted to their senate a power of submitting all their rights to the will of one man, does it follow that the a.s.sembly of Virginia have the same authority? What clause in our const.i.tution has subst.i.tuted that of Rome, by way of residuary provision, for all cases not otherwise provided for? Or if they may step ad libitum ad libitum into any other form of government for precedents to rule us by, for what oppression may not a precedent be found in this world of the into any other form of government for precedents to rule us by, for what oppression may not a precedent be found in this world of the ballum ballum omnium in omnium in omnia? omnia? Searching for the foundations of this proposition, I can find none which may pretend a color of right or reason, but the defect before developed, that there being no barrier between the legislative, executive, and judiciary departments, the legislature may seize the whole; that having seized it, and possessing a right to fix their own quorum, they may reduce that quorum to one, whom they may call a chairman, speaker, dictator, or by any other name they please. Our situation is indeed perilous, and I hope my countrymen will be sensible of it, and will apply, at a proper season, the proper remedy; which is a convention to fix the const.i.tution, to amend its defects, to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights. Searching for the foundations of this proposition, I can find none which may pretend a color of right or reason, but the defect before developed, that there being no barrier between the legislative, executive, and judiciary departments, the legislature may seize the whole; that having seized it, and possessing a right to fix their own quorum, they may reduce that quorum to one, whom they may call a chairman, speaker, dictator, or by any other name they please. Our situation is indeed perilous, and I hope my countrymen will be sensible of it, and will apply, at a proper season, the proper remedy; which is a convention to fix the const.i.tution, to amend its defects, to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.

Query XIV (excerpt) The administration of justice and the description of the laws?

MANY OF THE LAWS which were in force during the monarchy being relative merely to that form of government, or inculcating principles inconsistent with republicanism, the first a.s.sembly which met after the establishment of the commonwealth appointed a committee to revise the whole code, to reduce it into proper form and volume, and report it to the a.s.sembly. This work has been executed by three gentlemen, and reported; but probably will not be taken up till a restoration of peace shall leave to the legislature leisure to go through such a work.

The plan of the revisal was this. The common law of England, by which is meant, that part of the English law which was anterior to the date of the oldest statutes extant, is made the basis of the work. It was thought dangerous to attempt to reduce it to a text; it was therefore left to be collected from the usual monuments of it. Necessary alterations in that, and so much