QUERY XIII
 
        _The constitution of the state, and its several charters?_

        Constitution
        Queen Elizabeth by her letters-patent, bearing date March 25,
1584, licensed Sir Walter Raleigh to search for remote heathen lands,
not inhabited by Christian people, and granted to him, in fee simple,
all the soil within 200 leagues of the places where his people
should, within 6 years, make their dwellings or abidings; reserving
only, to herself and her successors, their allegiance and one fifth
part of all the gold and silver ore they should obtain.  Sir Walter
immediately sent out two ships which visited Wococon island in North
Carolina, and the next year dispatched seven with 107 men, who
settled in Roanoke island, about latitude 35 degrees.50'.  Here
Okisko, king of the Weopomeiocs, in a full council of his people, is
said to have acknowledged himself the homager of the Queen of
England, and, after her, of Sir Walter Raleigh.  A supply of 50 men
were sent in 1586, and 150 in 1587.  With these last, Sir Walter sent
a Governor, appointed him twelve assistants, gave them a charter of
incorporation, and instructed them to settle on Chesapeak bay.  They
landed however at Hatorask.  In 1588, when a fleet was ready to sail
with a new supply of colonists and necessaries, they were detained by
the Queen to assist against the Spanish Armada.  Sir Walter having
now expended 40,000 l. in these enterprizes, obstructed occasionally
by the crown, without a shilling of aid from it, was under a
necessity of engaging others to adventure their money.  He therefore,
by deed bearing date the 7th of March 1589, by the name of Sir Walter
Raleigh, Chief Governor of Assamacomoc, (probably Acomac), alias
Wingadacoia, alias Virginia, granted to Thomas Smith and others, in
consideration of their adventuring certain sums of money, liberty of
trade to his new country, free from all customs and taxes for seven
years, excepting the fifth part of the gold and silver ore to be
obtained; and stipulated with them, and the other assistants, then in
Virginia, that he would confirm the deed of incorporation which he
had given in 1587, with all the prerogatives, jurisdictions,
royalties and privileges granted to him by the Queen.  Sir Walter, at
different times, sent five other adventures hither, the last of which
was in 1602: for in 1603 he was attainted, and put into close
imprisonment, which put an end to his cares over his infant colony.
What was the particular fate of the colonists he had before sent and
seated, has never been known: whether they were murdered, or
incorporated with the savages.

        Some gentlemen and merchants, supposing that by the attainder
of Sir Walter Raleigh the grant to him was forfeited, not enquiring
over carefully whether the sentence of an English court could affect
lands not within the jurisdiction of that court, petitioned king
James for a new grant of Virginia to them.  He accordingly executed a
grant to Sir Thomas Gates and others, bearing date the 9th of March
1607, under which, in the same year a settlement was effected at
James-town and ever after maintained.  Of this grant however no
particular notice need be taken, as it was superseded by
letters-patent of the same king, of May 23, 1609, to the Earl of
Salisbury and others, incorporating them by the name of `the
Treasurer and Company of adventurers and planters of the City of
London for the first colony in Virginia,' granting to them and their
successors all the lands in Virginia from Point Comfort along the sea
coast to the northward 200 miles, and from the same point along the
sea coast to the southward 200 miles, and all the space from this
precinct on the sea coast up into the land, West and North-west, from
sea to sea, and the islands within one hundred miles of it, with all
the commodities, jurisdictions, royalties, privileges, franchises and
pre-eminences within the same, and thereto and thereabouts, by sea
and land, appertaining, in as ample manner as had before been granted
to any adventurer: to be held of the king and his successors, in
common soccage, yielding one fifth part of the gold and silver ore to
be therein found, for all manner of services; establishing a council
in England for the direction of the enterprise, the members of which
were to be chosen and displaced by the voice of the majority of the
company and adventurers, and were to have the nomination and
revocation of governors, officers, and ministers, which by them
should be thought needful for the colony, the power of establishing
laws and forms of government and magistracy, obligatory not only
within the colony, but also on the seas in going and coming to and
from it; authorising them to carry thither any persons who should
consent to go, freeing them for ever from all taxes and impositions
on any goods or merchandize on importation into the colony, or
exportation out of it, except the five per cent. due for custom on
all goods imported into the British dominions, according to the
ancient trade of merchants; which five per cent. only being paid,
they might, within 13 months, re-export the same goods into foreign
parts, without any custom, tax, or other duty, to the king or any his
officers or deputies: with powers of waging war against those who
should annoy them: giving to the inhabitants of the colony all the
rights of natural subjects, as if born and abiding in England; and
declaring that these letters should be construed, in all doubtful
parts, in such manner as should be most for the benefit of the
grantees.

        Afterwards, on the 12th of March 1612, by other letters-patent,
the king added to his former grants, all islands in any part of the
ocean between the 30th and 41st degrees of latitude, and within 300
leagues of any of the parts before granted to the Treasurer and
company, not being possessed or inhabited by any other christian
prince or state, nor within the limits of the northern colony.

        In pursuance of the authorities given to the company by these
charters, and more especially of that part in the charter of 1609,
which authorised them to establish a form of government, they on the
24th of July 1621, by charter under their common seal, declared that
from thenceforward there should be two supreme councils in Virginia,
the one to be called the council of state, to be placed and displaced
by the treasurer, council in England, and company, from time to time,
whose office was to be that of assisting and advising the governor;
the other to be called the general assembly, to be convened by the
governor once yearly or oftener, which was to consist of the council
of state, and two burgesses out of every town, hundred, or
plantation, to be respectively chosen by the inhabitants.  In this
all matters were to be decided by the greater part of the votes
present; reserving to the governor a negative voice; and they were to
have power to treat, consult, and conclude all emergent occasions
concerning the public weal, and to make laws for the behoof and
government of the colony, imitating and following the laws and policy
of England as nearly as might be: providing that these laws should
have no force till ratified in a general quarter court of the company
in England, and returned under their common seal, and declaring that,
after the government of the colony should be well framed and settled,
no orders of the council in England should bind the colony unless
ratified in the said general assembly.  The king and company
quarrelled, and, by a mixture of law and force, the latter were
ousted of all their rights, without retribution, after having
expended 100,000 l. in establishing the colony, without the smallest
aid from government.  King James suspended their powers by
proclamation of July 15, 1624, and Charles I. took the government
into his own hands.  Both sides had their partisans in the colony:
but in truth the people of the colony in general thought themselves
little concerned in the dispute.  There being three parties
interested in these several charters, what passed between the first
and second it was thought could not affect the third.  If the king
seized on the powers of the company, they only passed into other
hands, without increase or diminution, while the rights of the people
remained as they were.  But they did not remain so long.  The
northern parts of their country were granted away to the Lords
Baltimore and Fairfax, the first of these obtaining also the rights
of separate jurisdiction and government.  And in 1650 the parliament,
considering itself as standing in the place of their deposed king,
and as having succeeded to all his powers, without as well as within
the realm, began to assume a right over the colonies, passing an act
for inhibiting their trade with foreign nations.  This succession to
the exercise of the kingly authority gave the first colour for
parliamentary interference with the colonies, and produced that fatal
precedent which they continued to follow after they had retired, in
other respects, within their proper functions.  When this colony,
therefore, which still maintained its opposition to Cromwell and the
parliament, was induced in 1651 to lay down their arms, they
previously secured their most essential rights, by a solemn
convention, which having never seen in print, I will here insert
literally from the records.

 
        `ARTICLES agreed on & concluded at James Cittie in Virginia for
the surrendering and settling of that plantation under ye obedience &
goverment of the common wealth of England by the Commissioners of the
Councill of state by authoritie of the parliamt.  of England & by the
Grand assembly of the Governour, Councill & Burgesses of that
countrey.

        `First it is agreed and consted that the plantation of
Virginia, and all the inhabitants thereof shall be and remaine in due
obedience and subjection to the Comon wealth of England, according to
ye lawes there established, and that this submission and subscription
bee acknowledged a voluntary act not forced nor constrained by a
conquest upon the countrey, and that they shall have & enjoy such
freedomes and priviledges as belong to the free borne people of
England, and that the former government by the Comissions and
Instructions be void and null.

        `2ly, Secondly that the Grand assembly as formerly shall
convene & transact the affairs of Virginia wherein nothing is to be
acted or done contrarie to the government of the Comon wealth of
England & the lawes there established.

        `3ly, That there shall be a full & totall remission and
indempnitie of all acts, words, or writeings done or spoken against
the parliament of England in relation to the same.

        `4ly, That Virginia shall have & enjoy ye antient bounds and
Lymitts granted by the charters of the former kings, and that we
shall seek a new charter from the parliament to that purpose against
any that have intrencht upon ye rights thereof.

        `5ly, That all the pattents of land granted under the collony
seale by any of the precedent governours shall be & remaine in their
full force & strength.

        `6ly, That the priviledge of haveing ffiftie acres of land for
every person transported in that collonie shall continue as formerly
granted.

        `7ly, That ye people of Virginia have free trade as ye people
of England do enjoy to all places and with all nations according to
ye lawes of that common wealth, and that Virginia shall enjoy all
priviledges equall with any English plantations in America.

        `8ly, That Virginia shall be free from all taxes, customs &
impositions whatsoever, & none to be imposed on them without consent
of the Grand assembly, And soe that neither ffortes nor castles bee
erected or garrisons maintained without their consent.

        `9ly, That no charge shall be required from this country in
respect of this present fleet.

        `10ly, That for the future settlement of the countrey in their
due obedience, the Engagement shall be tendred to all ye inhabitants
according to act of parliament made to that purpose, that all persons
who shall refuse to subscribe the said engagement, shall have a
yeare's time if they please to remove themselves & their estates out
of Virginia, and in the mean time during the said yeare to have
equall justice as formerly.

        `11ly, That ye use of the booke of common prayer shall be
permitted for one yeare ensueinge with referrence to the consent of
ye major part of the parishes, provided that those things which
relate to kingshipp or that government be not used publiquely, and
the continuance of ministers in their places, they not misdemeaning
themselves, and the payment of their accustomed dues and agreements
made with them respectively shall be left as they now stand dureing
this ensueing yeare.

        `12ly, That no man's cattell shall be questioned as ye
companies unles such as have been entrusted with them or have
disposed of them without order.

        `13ly, That all ammunition, powder & armes, other then for
private use, shall be delivered up, securitie being given to make
satisfaction for it.

        `14ly, That all goods allreadie brought hither by ye Dutch or
others which are now on shoar shall be free from surprizall.

        `15ly, That the quittrents granted unto us by the late kinge
for seaven yeares bee confirmed.

        `16ly, That ye commissioners for the parliament subscribeing
these articles engage themselves & the honour of the parliament for
the full performance thereof: and that the present governour & ye
councill & the burgesses do likewise subscribe & engage the whole
collony on their parts.

 
        RICH. BENNETT. ---- Seale.
        W'm. CLAIBORNE. ---- Seale.
        EDMOND CURTIS. ---- Seale.

        `Theise articles were signed & sealed by the Commissioners of
the Councill of state for the Commonwealth of England the twelveth
day of March 1651.'

        Then follow the articles stipulated by the governor and
council, which relate merely to their own persons and property, and
then the ensuing instrument:

        `An act of indempnitie made att the surrender of the countrey.

        `Whereas by the authoritie of the parliament of England wee the
commissioners appointed by the councill of state authorized thereto
having brought a fleete & force before James cittie in Virginia to
reduce that collonie under the obedience of the commonwealth of
England, & findeing force raised by the Governour & countrey to make
opposition against the said ffleet whereby assured danger appearinge
of the ruine & destruction of ye plantation, for prevention whereof
the Burgesses of all the severall plantations being called to advise
& assist therein, uppon long & serious debate, and in sad
contemplation of the greate miseries & certaine destruction which
were soe neerely hovering over the whole countrey; Wee the said
Comissioners have thought fitt & condescended and granted to signe &
confirme under our hands, seales, & by our oath, Articles bearinge
date with theise presents, and do further declare that by ye
authoritie of the parliament & commonwealth of England derived unto
us theire Comissioners, that according to the articles in generall
wee have granted an act of indempnitie and oblivion to all the
inhabitants of this colloney from all words, actions, or writings
that have been spoken acted or writt against the parliament or
commonwealth of England or any other person from the beginning of the
world to this daye.  And this wee have done that all the inhabitants
of the collonie may live quietly & securely under the comonwealth of
England.  And wee do promise that the parliament and commonwealth of
England shall confirme & make good all those transactions of ours.
Wittnes our hands & seales this 12th of March 1651.  Richard Bennett
-- Seale. W'm. Claiborne -- Seale. Edm. Curtis -- Seale.'

        The colony supposed, that, by this solemn convention, entered
into with arms in their hands, they had secured the (* 1) antient
limits of their country, (* 2) its free trade, its exemption from (*
3) taxation but by their own assembly, and exclusion of (* 4)
military force from among them.  Yet in every of these points was
this convention violated by subsequent kings and parliaments, and
other infractions of their constitution, equally dangerous,
committed.  Their General Assembly, which was composed of the council
of state and burgesses, sitting together and deciding by plurality of
voices, was split into two houses, by which the council obtained a
separate negative on their laws.  Appeals from their supreme court,
which had been fixed by law in their General Assembly, were
arbitrarily revoked to England, to be there heard before the king and
council.  Instead of four hundred miles on the sea coast, they were
reduced, in the space of thirty years, to about one hundred miles.
Their trade with foreigners was totally suppressed, and, when carried
to Great-Britain, was there loaded with imposts.  It is unnecessary,
however, to glean up the several instances of injury, as scattered
through American and British history, and the more especially as, by
passing on to the accession of the present king, we shall find
specimens of them all, aggravated, multiplied and crouded within a
small compass of time, so as to evince a fixed design of considering
our rights natural, conventional and chartered as mere nullities.
The following is an epitome of the first fifteen years of his reign.
The colonies were taxed internally and externally; their essential
interests sacrificed to individuals in Great-Britain; their
legislatures suspended; charters annulled; trials by juries taken
away; their persons subjected to transportation across the Atlantic,
and to trial before foreign judicatories; their supplications for
redress thought beneath answer; themselves published as cowards in
the councils of their mother country and courts of Europe; armed
troops sent among them to enforce submission to these violences; and
actual hostilities commenced against them.  No alternative was
presented but resistance, or unconditional submission.  Between these
could be no hesitation.  They closed in the appeal to arms.  They
declared themselves independent States.  They confederated together
into one great republic; thus securing to every state the benefit of
an union of their whole force.  In each state separately a new form
of government was established.  Of ours particularly the following
are the outlines.  The executive powers are lodged in the hands of a
governor, chosen annually, and incapable of acting more than three
years in seven.  He is assisted by a council of eight members.  The
judiciary powers are divided among several courts, as will be
hereafter explained.  Legislation is exercised by two houses of
assembly, the one called the house of Delegates, composed of two
members from each county, chosen annually by the citizens possessing
an estate for life in 100 acres of uninhabited land, or 25 acres with
a house on it, or in a house or lot in some town: the other called
the Senate, consisting of 24 members, chosen quadrennially by the
same electors, who for this purpose are distributed into 24
districts.  The concurrence of both houses is necessary to the
passage of a law.  They have the appointment of the governor and
council, the judges of the superior courts, auditors,
attorney-general, treasurer, register of the land office, and
delegates to congress.  As the dismemberment of the state had never
had its confirmation, but, on the contrary, had always been the
subject of protestation and complaint, that it might never be in our
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 constitution was formed when we were new and unexperienced
in the science of government.  It was the first too which was formed
in the whole United States.  No wonder then that time and trial have
discovered very capital defects init.

        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 intitled 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 1746.  So that every man in Warwick has as much influence
in the government as 17 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 shew the proportions of
land, of fighting men, and of representation in each.

        Square Fighting Delegates Senators
                                 miles.  men.
 Between the sea-coast and
 falls of the rivers              11,205 19,012       71             12
                                  (* 5)
 Between the falls of the
 rivers and the Blue ridge
 of mountains                     18,759 18,828       46              8

 Between the Blue ridge and
 the Alleghaney                   11,911  7,673       16              2

 Between the Alleghaney and
 the Ohio                         79,650  4,458       16              2
                                  (* 6)
         Total                   121,525 49,971       14             24

        An inspection of this table will supply the place of
commentaries 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
circumstances, their interests will often be very different.

        3. 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 falls of course on men
of the same description.  The purpose of establishing different
houses of legislation is to introduce the influence of different
interests or different principles.  Thus in Great-Britain it is said
their constitution relies on the 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 is 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.  173 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 passed the ordinance of government, laid its
foundation on this basis, that the legislative, executive and
judiciary departments should be separate and distinct, so that no
person should exercise the powers of more than one of them at the
same time.  But no barrier was provided between these several powers.
The judiciary and executive members were left dependant on the
legislative, for their subsistence in office, and some of them for
their continuance in it.  If therefore the legislature assumes
executive and judiciary powers, no opposition is likely to be made;
nor, if made, can it be effectual; because in that case they may put
their proceedings into the form of an act of assembly, which will
render them obligatory on the other branches.  They have accordingly,
in many instances, decided rights which should have been left to
judiciary controversy: and the direction of the executive, during the
whole time of their session, is becoming habitual and familiar.  And
this is done with no ill intention.  The views of the present members
are perfectly upright.  When they are led out of their regular
province, it is by art in others, and inadvertence in themselves.
And this will probably be the case for some time to come.  But it
will not be a very long time.  Mankind soon learn to make interested
uses of every right and power which they possess, or may assume.  The
public money and public liberty, intended to have been deposited with
three branches of magistracy, but found inadvertently to be in the
hands of one only, will soon be discovered to be sources of wealth
and dominion to those who hold them; distinguished too by this
tempting circumstance, that they are the instrument, as well as the
object of acquisition.  With money we will get men, said Caesar, and
with men we will get money.  Nor should our assembly be deluded by
the integrity of their own purposes, and conclude that these
unlimited powers will never be abused, because themselves are not
disposed to abuse them.  They should look forward to a time, and that
not a distant one, when corruption in this, as in the country from
which we 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 on us.
It is better to keep the wolf out of the fold, than to trust to
drawing his teeth and talons after he shall have entered.  To render
these considerations the more cogent, we must observe in addition,

        5. That the ordinary legislature may alter the constitution
itself.  On the discontinuance of assemblies, it became necessary to
substitute in their place some other body, competent to the ordinary
business of government, and to the calling forth the powers of the
state for the maintenance of our opposition to Great-Britain.
Conventions were therefore introduced, consisting of two delegates
from each county, meeting together and forming one house, on the plan
of the former house of Burgesses, to whose places they succeeded.
These were at first chosen anew for every particular session.  But in
March 1775, they recommended to the people to chuse a convention,
which should continue in office a year.  This was done accordingly in
April 1775, and in the July following that convention passed an
ordinance for the election of delegates in the month of April
annually.  It is well known, that in July 1775, a separation from
Great-Britain and establishment of Republican government had never
yet entered into any person's mind.  A convention therefore, chosen
under that ordinance, cannot be said to have been chosen for purposes
which certainly did not exist in the minds of those who passed it.
Under this ordinance, at the annual election in April 1776, a
convention for the year was chosen.  Independance, and the
establishment of a new form of government, were not even yet the
objects of the people at large.  One extract from the pamphlet called
Common Sense had appeared in the Virginia papers in February, and
copies of the pamphlet itself had got into a few hands.  But the idea
had not been opened to the mass of the people in April, much less can
it be said that they had made up their minds in its favor.  So that
the electors of April 1776, no more than the legislators of July
1775, not thinking of independance 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 powers but what were given to every
legislature before and since.  They could not therefore pass an act
transcendant to the powers of other legislatures.  If the present
assembly pass any act, and declare it shall be irrevocable by
subsequent assemblies, the declaration is merely void, and the act
repealable, as other acts are.  So far, and no farther authorized,
they organized the government by the ordinance entitled a
Constitution or Form of government.  It pretends to no higher
authority than the other ordinances of the same session; it does not
say, that it shall be perpetual; that it shall be unalterable by
other legislatures; that it shall be transcendant above the powers of
those, who they knew would have equal power with themselves.  Not
only the silence of the instrument is a proof they thought it would
be alterable, but their own practice also: for this very convention,
meeting as a House of Delegates in General Assembly with the new
Senate in the autumn of that year, passed acts of assembly in
contradiction to their ordinance of government; and every assembly
from that time to this has done the same.  I am safe therefore in the
position, that the constitution itself is alterable by the ordinary
legislature.  Though this opinion seems founded on the first elements
of common sense, yet is the contrary maintained by some persons.  1.
Because, say they, the conventions were vested with every power
necessary to make effectual opposition to Great-Britain.  But to
complete this argument, they must go on, and say further, that
effectual opposition could not be made to Great-Britain, without
establishing a form of government perpetual and 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 institution
to carry it on: and a government, amendable as its defects should be
discovered, was as likely to make effectual resistance, as one which
should be unalterably wrong.  Besides, the assemblies were as much
vested with all powers requisite for resistance as the conventions
were.  If therefore these powers included that of modelling the form
of government in the one case, they did so in the other.  The
assemblies then as well as the conventions may model the government;
that is, they may alter the ordinance of government.  2. They urge,
that if the convention had meant that this instrument should be
alterable, as their other ordinances were, they would have called it
an ordinance: but they have called it a _constitution_, which ex vi
termini means `an act above the power of the ordinary legislature.' I
answer that _constitutio_, _constitutum_, _statutum_, _lex_, are
convertible terms.  `_Constitutio_ dicitur jus quod a principe
conditur.' `_Constitutum_, quod ab imperatoribus rescriptum
statutumve est.' `_Statutum_, idem quod lex.' Calvini Lexicon
juridicum.  _Constitution_ and _statute_ were originally terms of the
(* 7) civil law, and from thence introduced by Ecclesiastics into the
English law.  Thus in the statute 25 Hen. 8. c. 19. (symbol omitted).
1. `_Constitutions_ and _ordinances_' are used as synonimous.  The
term _constitution_ has many other significations in physics and in
politics; but in Jurisprudence, whenever it is applied to any act of
the legislature, it invariably means a statute, law, or ordinance,
which is the present case.  No inference then of a different meaning
can be drawn from the adoption of this title: on the contrary, we
might conclude, that, by their affixing to it a term synonimous with
ordinance, or statute, they meant it to be an 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 which renders
an act obligatory.  Lord Coke says, `an article of the statute 11 R.
2. c.  5. that no person should attempt to revoke any ordinance then
made, is repealed, for that such restraint is against the
jurisdiction and power of the parliament.' 4. inst. 42. and again,
`though divers parliaments have attempted to restrain subsequent
parliaments, yet could they never effect it; for the latter
parliament hath ever power to abrogate, suspend, qualify, explain, or
make void the former in the whole or in any part thereof,
notwithstanding any words of restraint, prohibition, or penalty, in
the former: for it is a maxim in the laws of the parliament, quod
leges posteriores priores contrarias abrogant.' 4. inst. 43. -- To
get rid of the magic supposed to be in the word _constitution_, let
us translate it into its definition as given by those who think it
above the power of the law; and let us suppose the convention instead
of saying, `We, the ordinary legislature, establish a
_constitution_,' had said, `We, the ordinary legislature, establish
an act _above the power of the ordinary legislature._' Does not this
expose the absurdity of the attempt?  3. But, say they, the people
have acquiesced, and this has given it an authority superior to the
laws.  It is true, that the people did not rebel against it: and was
that a time for the people to rise in rebellion?  Should a prudent
acquiescence, at a critical time, be construed into a confirmation of
every illegal thing done 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, passed an ordinance of government.
They did not presume to call it perpetual and unalterable.  They well
knew they had no power to make it so; that our choice of them had
been for no such purpose, and at a time when we could have no such
purpose in contemplation.  Had an unalterable form of government been
meditated, perhaps we should have chosen a different set of people.
There was no cause then for the people to rise in rebellion.  But to
what dangerous lengths will this argument lead?  Did the acquiescence
of the colonies under the various acts of power exercised by
Great-Britain in our infant state, confirm these acts, and so far
invest them with the authority of the people as to render them
unalterable, and our present resistance wrong?  On every
unauthoritative exercise of power by the legislature, must the people
rise in rebellion, or their silence be construed into a surrender of
that power to them?  If so, how many rebellions should we have had
already?  One certainly for every session of assembly.  The other
states in the Union have been of opinion, that to render a form of
government unalterable by ordinary acts of assembly, the people must
delegate persons with special powers.  They have accordingly chosen
special conventions to form and fix their governments.  The
individuals then who maintain the contrary opinion in this country,
should have the modesty to suppose it possible that they may be wrong
and the rest of America right.  But if there be only a possibility of
their being wrong, if only a plausible doubt remains of the validity
of the ordinance of government, is it not better to remove that
doubt, by placing it on a bottom which none will dispute?  If they be
right, we shall only have the unnecessary trouble of meeting once in
convention.  If they be wrong, they expose us to the hazard of having
no fundamental rights at all.  True it is, this is no time for
deliberating on forms of government.  While an enemy is within our
bowels, the first object is to 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 any thing more be
requisite to produce a conviction of the expediency of calling a
convention, at a proper season, to fix our form of government, let it
be the reflection,

        6. That the assembly exercises a power of determining 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 (* 8) common law as well as common right.  It is
the (* 9) natural law of every assembly 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 pass an act.  But
the British parliament fixes its own quorum: our former assemblies
fixed their own quorum: and one precedent in favour of power is
stronger than anhundred against it.  The house of delegates therefore
have (* 10) 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
substituted 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 ad indignos et
non idoneos fertur.' When therefore it is considered, that there is
no legal obstacle to the assumption by the assembly of all the powers
legislative, executive, and judiciary, and that these may come to the
hands of the smallest rag of delegation, surely the people will say,
and their representatives, while yet they have honest
representatives, will advise them to say, that they will not
acknowledge as laws any acts not considered and assented to by the
major part of their delegates.

        In enumerating the defects of the constitution, it would be
wrong to count among them what is only the error of particular
persons.  In December 1776, our circumstances being much distressed,
it was proposed in the house of delegates to create a _dictator_,
invested with every power legislative, executive and judiciary, civil
and military, of life and of death, over our persons and over our
properties: and in June 1781, again under calamity, the same
proposition was repeated, and wanted a few votes only of being
passed. -- One who entered into this contest from a pure love of
liberty, and a sense of injured rights, who determined to make every
sacrifice, and to meet every danger, for the re-establishment of
those rights on a firm basis, who did not mean to expend his blood
and substance for the wretched purpose of changing this master for
that, but to place the powers of governing him in a plurality of
hands of his own choice, so that the corrupt will of no one man might
in future oppress him, must stand confounded and dismayed when he is
told, that a considerable portion of that plurality had meditated the
surrender of them into a single hand, and, in lieu of a limited
monarch, to deliver him over to a despotic one!  How must we find his
efforts and sacrifices abused and baffled, if he may still by a
single vote be laid prostrate at the feet of one man!  In God's name,
from whence have they derived this power?  Is it from our ancient
laws?  None such can be produced.  Is it from any principle in our
new constitution, expressed or implied?  Every lineament of that
expressed or implied, is in full opposition to it.  Its fundamental
principle is, that the state shall be governed as a commonwealth.  It
provides a republican organization, proscribes under the name of
_prerogative_ the exercise of all powers undefined by the laws;
places on this basis the whole system of our laws; and, by
consolidating them together, chuses that they shall be left to stand
or fall together, never providing for any circumstances, nor
admitting that such could arise, wherein either should be suspended,
no, not for a moment.  Our antient 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 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,
Massachusets had found even the government of committees sufficient
to carry them through an invasion.  But we at the time of that
proposition were under no invasion.  When the second was made, there
had been added to this example those of Rhode-Island, New-York,
New-Jersey, and Pennsylvania, in all of which the republican form had
been found equal to the task of carrying them through the severest
trials.  In this state alone did there exist so little virtue, that
fear was to be fixed in the hearts of the people, and to become the
motive of their exertions and the principle of their government?  The
very thought alone was treason against the people; was treason
against mankind in general; as rivetting for ever 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 assume the right of giving away the reins of
government in any case, must be sure that the herd, whom they hand on
to the rods and hatchet of the dictator, will lay their necks on the
block when he shall nod to them.  But if our assemblies supposed such
a resignation in the people, I hope they mistook their character.  I
am of opinion, that the government, instead of being braced and
invigorated for greater exertions under their difficulties, would
have been thrown back upon the bungling machinery of county
committees for administration, till a convention could have been
called, and its wheels again set into regular motion.  What a cruel
moment was this for creating such an embarrassment, for putting to
the proof the attachment of our countrymen to republican government!
Those who meant well, of the advocates for this measure, (and most of
them meant well, for I know them personally, had been their
fellow-labourers in the common cause, and had often proved the purity
of their principles), had been seduced in their judgment by the
example of an ancient republic, whose constitution and circumstances
were fundamentally different.  They had sought this precedent in the
history of Rome, where alone it was to be found, and where at length
too it had proved fatal.  They had taken it from a republic, rent by
the most bitter factions and tumults, where the government was of a
heavy-handed unfeeling aristocracy, over a people ferocious, and
rendered desperate by poverty and wretchedness; tumults which could
not be allayed under the most trying circumstances, but by the
omnipotent hand of a single despot.  Their constitution therefore
allowed a temporary tyrant to be erected, under the name of a
Dictator; and that temporary tyrant, after a few examples, became
perpetual.  They misapplied this precedent to a people, mild in their
dispositions, patient under their trial, united for the public
liberty, and affectionate to their leaders.  But if from the
constitution of the Roman government there resulted to their Senate a
power of submitting all their rights to the will of one man, does it
follow, that the assembly of Virginia have the same authority?  What
clause in our constitution has substituted that of Rome, by way of
residuary provision, for all cases not otherwise provided for?  Or if
they may step ad libitum into any other form of government for
precedents to rule us by, for what oppression may not a precedent be
found in this world of the bellum omnium in omnia? -- Searching for
the foundations of this proposition, I can find none which may
pretend a colour 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 constitution, to amend its defects, to bind up
the several branches of government by certain laws, which when they
transgress their acts shall become nullities; to render unnecessary
an appeal to the people, or in other words a rebellion, on every
infraction of their rights, on the peril that their acquiescence
shall be construed into an intention to surrender those rights.

        (* 1) Art. 4.

        (* 2) Art. 7.

        (* 3) Art. 8.

        (* 4) Art. 8.

        (* 5) Of these, 542 are on the Eastern shore.

        (* 6) Of these, 22,616 are Eastward of the meridian of the
mouth of the Great Kanhaway.

        (* 7) To _bid_, to _set_, was the antient legislative word of
the English.  Ll. Hlotharii & Eadrici. Ll. Inae. Ll. Eadwerdi. Ll.
Aathelstani.

        (* 8) Bro. abr. Corporations. 31.34. Hakewell, 93.
 
        (* 9) Puff. Off. hom. l. 2. c. 6. 12.

        (* 10) June 4, 1781.