Notes on the State of Virginia (1802)/Appendix 2
No. II.
In the Summer of the Year 1783, it was expected, that the Assembly of Virginia would call a Convention for the Eſtabliſhment of a Constitution. The following Draught of a Fundamental Constitution for the Commonwealth of Virginia was then prepared, with a deſign of being propoſed in ſuch Convention had it taken place.
TO the citizens of the commonwealth of Virginia, and all others whom it may concern, the delegates for the ſaid commonwealth in convention aſſembled, ſend greeting.
It is known to you, and to the world, that the government of Great-Britain, with which the American States were not long ſince connected, aſſumed over them an authority unwarrantable and oppreſſive; that they endeavored to enforce this authority by arms, and that the ſtates of New-Hampſhire, Maſſachuſetts, Rhode-Iſland, Connecticut, New-York, New-Jerſey, Pennſylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, conſidering reſiſtance, with all its train of horrors, as a leſſer evil than abject ſubmiſſion, cloſed in the appeal to arms. It hath pleaſed the Sovereign Diſpoſer of all human events to give to this appeal an iſſue favorable to the rights of the ſtates; to enable them to reject for ever all dependance on a government which had ſhewn itſelf ſo capable of abuſing the truſts repoſed in it; and to obtain from that government a ſolemn and explicit acknowledgement that they are free, ſovereign, and independent ſtates. During the progress of that war, through which we had to labor for the eſtabliſhment of our rights, the legiſlature of the commonwealth of Virginia found it neceſſary to make a temporary organization of government for preventing anarchy, and pointing our efforts to the two important objects of war againſt our invaders, and peace and happineſs among ourſelves. But this like all other acts of legiſlation, being ſubject to change by ſubſequent legiſlatures, poſſeſſing equal power with themſelves, it has been thought expedient, that it ſhould receive thoſe amendments which time and trial have ſuggeſted, and be rendered permanent by a power ſuperior to that of the ordinary legiſlature. The general aſſembly therefore of this ſtate recommend it to the good people thereof, to chuſe delegates to meet in general convention, with powers to form a conſtitution of government for them, and to declare thoſe fundamentals to which all our laws preſent and future ſhall be ſubordinate and, in compliance with this recommendation, they have thought proper to make choice of us, and to veſt us with powers for this purpoſe.
We therefore, the delegates, choſen by the ſaid good people of this ſtate for the purpoſe aforeſaid, and now aſſembled in general convention, do in execution of the authority with which we are inveſted, eſtabliſh the following conſtitution and fundamentals of government for the ſaid ſtate of Virginia.
The ſaid ſtate ſhall for ever hereafter be governed as a commonwealth.
The powers of government ſhall be divided into three diſtinct departments each of them to be confided to a ſeparate body of magiſtracy; to wit, thoſe which are legiſlative to one, thoſe which are judiciary to another, and thoſe which are executive to another. No perſon, or collection of perſons, being of one of theſe departments, ſhall exerciſe any power properly belonging to either of the others, except in the inſtances hereinafter expreſsly permitted.
The legiſlature ſhall conſiſt of two branches, the one to be called the houſe of delegates, the other the ſenate, and both together the general aſſembly. The concurrence of both of theſe, expreſſed on three ſeveral readings, ſhall be neceſſary to the paſſage of a law.
Delegates for the general aſſembly ſhall be choſen on the laſt Monday of November in every year. But if an election cannot be concluded on that day it may be adjourned from day to day till it can be concluded.
The number of delegates which each county may ſend ſhall be in proportion to the number of its qualified electors; and the whole number of delegates for the ſtate ſhall be ſo proportioned to the whole number of qualified electors in it, that they ſhall never exceed 300, nor be fewer that 100. Whenever ſuch exceſs or deficiency ſhall take place, the houſe of delegates ſo deficient or exceſſive ſhall, notwithſtanding this, continue in being during its legal term: but they ſhall during that term, re-adjuſt the proportion, ſo as to bring their number within the limits before mentioned at the enſuing election. If any county be reduced in its qualified electors below the number authoriſed to ſend one delegate, let it be annexed to ſome adjoining county.
For the election of ſenators, let the ſeveral counties be allotted by the ſenate, from time to time, into ſuch and ſo many diſtricts as they ſhall find beſt; and let each county at the time of electing its delegates, chuſe ſenatorial electors, qualified as themſelves are, and four in number for each delegate their county is entitled to ſend, who ſhall convene, and conduct themſelves, in ſuch manner as the legiſlature ſhall direct, with the ſenatorial electors from the other counties of their diſtrict and then chuſe, by ballot, one ſenator for every ſix delegates which their diſtrict is entitled to chuſe. Let the ſenatorial diſtricts be divided into two claſſes, and let the members elected for one of them be diſſolved at the firſt enſuing general election of delegates, the other at the next, and ſo on alternately for ever.
All free male citizens, of full age, and ſane mind, who for one year before ſhall have been reſident in the county, or ſhall through the whole of that time have poſſeſſed therein real property of the value of or ſhall for the ſame time have been enrolled in the militia, and no others, ſhall have a right to vote for delegates for the ſaid county, and for ſenatorial electors for the diſtrict. They ſhall give their votes perſonally and viva voce.
The general aſſembly ſhall meet at the place to which the laſt adjournment was, on the 42d day after the day of the election of delegates, and thence forward at any other time or place on their own adjournment, till their office expires, which ſhall be on the day preceding that appointed for the meeting of the next general aſſembly. But if they ſhall at any time adjourn for more than one year, it ſhall be as if they had adjourned for one year preciſely. Neither houſe, without the concurrence of the other, ſhall adjourn for more than one week, nor to any other place than the one at which they are ſitting. The governor ſhall alſo have power, with the advice of the council of ſtate, to call them at any other time to the ſame place, or to a different one, if that ſhall have become ſince the laſt adjournment, dangerous from an enemy, or from infection.
A majority of either houſe ſhall be a quorum, and ſhall be requiſite for doing buſineſs; but any ſmaller proportion which from time to time ſhall be thought expedient by the reſpective houſes, ſhall be ſufficient to call for, and to puniſh their nonattending members, and to adjourn themſelves for any time not exceeding one week.
The members, during their attendance on the general aſſembly, and for ſo long a time before and after as ſhall be neceſſary for travelling to and from the ſame, ſhall be privileged from all perſonal reſtraint and aſſault, and ſhall have no other privilege, whatſoever. They ſhall receive during the ſame time, daily wages in gold or ſilver, equal to the value of two buſhels of wheat. This value ſhall be deemed one dollar by the buſhel till the year 1790, in which, and in every tenth year thereafter, the general court, at their firſt ſeſſions in the year, ſhall cauſe a ſpecial jury, of the moſt reſpectable merchants and farmers, to be ſummoned, to declare what ſhall have been the average value of wheat during the laſt ten years; which averaged value ſhall be the meaſure of wages for the ten ſubſequent years.
Of this general aſſembly, the treaſurer, attorney general, regiſter, miniſters of the goſpel, officers of the regular armies of this ſtate, or of the United States, perſons receiving ſalaries or emoluments from any power foreign to our confederacy, thoſe who are not reſident in the county for which they are choſen delegates, or diſtricts for which they are choſen ſenators, thoſe who are not qualified as electors, perſons who ſhall have committed treaſon, felony, or ſuch other crime as would ſubject them to infamous puniſhment, or who ſhall have been convicted by due courſe of law of bribery or corruption, in endeavoring to procure an election to the ſaid aſſembly, ſhall be incapable of being members. All others, not herein elſewhere excluded, who may elect, ſhall be capable of being elected thereto.
Any member of the ſaid aſſembly accepting any office of profit under this ſtate, or the United States, or any of them, ſhall thereby vacate his ſeat but ſhall be capable of being re-elected.
Vacancies occaſioned by ſuch diſqualifications, by death, or otherwiſe, ſhall be ſupplied by the electors, on a writ from the ſpeaker of the reſpective houſe.
The general aſſembly ſhall not have power to infringe this conſtitution; to abridge the civil rights of any perſon on account of his religious belief; to reſtrain him from profeſſing and ſupporting that belief, or to compel him to contributions, other than thoſe he ſhall have perſonally ſtipulated for the ſupport of that or any other; to ordain death for any crime but treaſon or murder, or military offences; to pardon, or give a power of pardoning perſons duly convicted of treaſon or felony, but inſtead thereof they may ſubſtitute one or two new trials, and no more; to paſs laws for puniſhing actions done before the exiſtence of ſuch laws; to paſs any bill of attainder of treaſon or felony; to preſcribe torture in any caſe whatever; nor to permit the introduction of any more ſlaves to reſide in this ſtate, or the continuance of ſlavery beyond the generation which ſhall be living on the thirty-firſt day of December, one thouſand eight hundred: all perſons born after that day being hereby declared free.
The general aſſembly ſhall have power to ſever from this ſtate all or any parts of its territory weſtward of the Ohio, or of the meridian of the mouth of the Great Kanhaway, and to cede to congreſs one hundred ſquare miles of territory in any other part of this ſtate, exempted from the juriſdiction and government of this ſtate ſo long as congreſs ſhall hold their ſeſſions therein, or in any territory adjacent thereto, which may be ceded to them by any other ſtate.
They ſhall have power to appoint the ſpeakers of their reſpective houſes, treaſurer, auditors, attorney-general, regiſter, all general officers of the military, their own clerks and ſerjeants, and no other officers, except where, in other parts of this conſtitution, ſuch appointment is expreſsly given them.
The executive powers ſhall be exerciſed by a Governor, who ſhall be choſen by joint ballot of both houſes of aſſembly, and when choſen ſhall remain in office five years, and be ineligible a ſecond time. During his term he ſhall hold no other office or emolument under this ſtate, or any other ſtate or power whatſoever. By executive powers, we mean on reference to thoſe powers exerciſed under our former government by the crown as of its prerogative, nor that theſe ſhall be the ſtandard of what may or may not be deemed the rightful powers of the governor. We give him thoſe powers only, which are neceſſary to execute the laws (and adminiſter the government) and which are not in their nature either legiſlative or judiciary. The application of this idea muſt be left to reaſon. We do however expreſsly deny him the prerogative powers of erecting courts, offices, boroughs, corporations, fairs, markets, ports, beacons, lighthouſes, and ſea-marks; of laying embargoes, of eſtabliſhing precedence, of retaining within the ſtate or recalling to it any citizen thereof, and of making denizens, except ſo far as he may be authoriſed from time to time by the legiſlature to exerciſe any of theſe powers. The powers of declaring war and concluding peace, of contracting alliances, of iſſuing letters of marque and repriſal, of raiſing and introducing armed forces, of building armed veſſels, forts, or ſtrong holds, of coining money or regulating its value, of regulating weights and meaſures, we leave to be exerciſed under the authority of the confederation: but in all caſes reſpecting them which are out of the ſaid confederation, they ſhall be exerciſed by the governor, under the regulation of ſuch laws as the legiſlature may think it expedient to paſs.
The whole military of this ſtate, whether regular, or of militia, ſhall be ſubject to his directions; but he ſhall leave the execution of thoſe directions to the general officers appointed by the legiſlature.
His ſalary ſhall be fixed by the legiſlature at the ſeſſion of the aſſembly in which he ſhall be appointed, and before ſuch appointment be made; or if it be not then fixed, it ſhall be the ſame which his next predeceſſor in office was entitled to. In either caſe he may demand it quarterly out of any money which ſhall be in the public treaſury; and it ſhall not be in the power of the legiſlature to give him leſs or more, either during his continuance in office, or after he ſhall have gone out of it. The lands, houſes, and other things appropriated to the uſe of the governor, ſhall remain to his uſe during his continuance in office.
A Council of State ſhall be choſen by joint ballot of both houſes of the aſſembly, who ſhall hold their offices ſeven years, and be ineligible a ſecond time, and who, while they ſhall be of the ſaid council, ſhall hold no other office or emolument under this ſtate, or any other ſtate or power whatſoever. Their duty ſhall be to attend and adviſe the governor when called on by him, and their advice in any caſe ſhall be a ſanction to him. They ſhall alſo have power, and it ſhall be their duty, to meet at their own will, and to give their advice, though not required by the governor, in caſes where they ſhall think the public good calls for it. Their advice and proceedings ſhall be entered in books to be kept for that purpoſe, and ſhall be ſigned as approved or diſapproved by the members preſent. Theſe books ſhall be laid before either houſe of aſſembly when called for by them. The ſaid council ſhall conſiſt of eight members for the preſent; but their numbers may be increaſed or reduced by the legiſlature, whenever they ſhall think it neceſſary: provided ſuch reduction be made only as the appointments become vacant by death, reſignation, diſqualification, or regular deprivation. A majority of their actual number, and not fewer, ſhall be a quorum. They ſhall be allowed for the preſent each by the year, payable quarterly out of any money which ſhall be in the public treaſury. Their ſalary however may be increaſed or abated from time to time, at the diſcretion of the legiſlature; provided ſuch increaſe or abatement ſhall not, by any ways or means, be made to effect either then, or at any future time, any one of thoſe then actually in office. At the end of each quarter their ſalary ſhall be divided into equal portions, by the number of days on which, during that quarter, a council has been held, or required by the governor, or by their own adjournment, and one of thoſe portions ſhall be withheld from each member for every of the ſaid days which, without cauſe allowed good by the board, he failed to attend, or departed before adjournment without their leave. If no board ſhould have been held during that quarter, there ſhall be no deduction.
They ſhall annually chuſe a Preſident, who ſhall preſide in council in the abſence of the governor, and who, in caſe of his office becoming vacant by death or otherwiſe, ſhall have authority to exerciſe all his functions, till a new appointment be made, as he ſhall alſo in any interval during which the governor ſhall declare himſelf unable to attend to the duties of his office.
The Judiciary powers ſhall be exerciſed by county courts and ſuch other inferior courts as the legiſlature ſhall think proper to continue or to erect, by three ſuperior courts, to wit, a court of admiralty, a general court of common law, and a high court of chancery; and by one ſupreme court, to be called the court of appeals.
The judges of the high court of chancery, general court, and court of admiralty, ſhall be four in number, each to be appointed by joint ballot of both houſes of aſſembly, and to hold their offices during good behaviour. While they continue judges, they ſhall hold no other office or emolument, under this ſtate, or any other ſtate or power whatſoever, except that they may be delegated to congreſs, receiving no additional allowance.
Theſe judges, aſſembled together, ſhall conſtitute the court of appeals whoſe buſineſs ſhall be to receive and determine appeals from the three ſuperior courts but to receive no original cauſes, except in the caſes expreſsly permitted herein.
A majority of the members of either of theſe courts, and not fewer, ſhall be a quorum. But in the court of appeals nine members ſhall be neceſſary to do buſineſs. Any ſmaller numbers however may be authoriſed by the legiſlature to adjourn their reſpective courts.
They ſhall be allowed for the preſent each by the year, payable quarterly out of any money which ſhall be in the public treaſury. Their ſalaries however may be increaſed or abated, from time to time, at the diſcretion of the legiſlature, provided ſuch increaſe or abatement ſhall not, by any ways or means, be made to affect, either then, or at any future time, any one of thoſe then actually in office. At the end of each quarter their ſalary ſhall be divided into equal portions by the number of days on which, during that quarter, their reſpective courts ſat, or ſhould have ſat, and one of theſe portions ſhall be withheld from each member for every of the ſaid days, which, without cauſe allowed good by his court, he failed to attend, or departed before adjournment without their leave. If no court ſhould have been held during the quarter, there ſhall be no deduction.
There ſhall moreover be a Court of Impeachments to conſiſt of three members of the council of ſtate, one of each of the ſuperior courts of chancery, common law, and admiralty, two members of the houſe of delegates and one of the ſenate, to be choſen by the body reſpectively of which they are. Before this court any member of the three branches of government, that is to ſay, the governor, any member of the council, of the two houſes of legiſlature, or of the ſuperior courts, may be impeached by the governor, the council, or either of the ſaid houſes or courts, and by no other, for ſuch miſbehaviour in office as would be ſufficient to remove him therefrom: and the only ſentence they ſhall have authority to paſs ſhall be that of deprivation and future incapacity of office. Seven members ſhall be requiſite to make a court, and two thirds, of thoſe preſent muſt concur in the ſentence. The offences cognizable by this court ſhall be cognizable by no other, and they ſhall be triers of the fact as well as judges of the law.
The juſtices or judges of the inferior courts already erected, or hereafter to be erected, ſhall be appointed by the governor, on advice of the council of ſtate, and ſhall hold their offices during good behaviour, or the exiſtance of their court. For breach of the good behaviour, they ſhall be tried according to the laws of the land, before the court of appeals, who ſhall be judges of the fact as well as of the law. The only ſentence they ſhall have authority to paſs, ſhall be that of deprivation and future incapacity of office, and two thirds of the members preſent muſt concur in this ſentence.
All courts ſhall appoint their own clerks, who ſhall hold their offices during good behaviour, or the exiſtence of their court: they ſhall alſo appoint all other their attending officers to continue during their pleaſure. Clerks appointed by the ſupreme or the ſuperior courts ſhall be removeable by their reſpective courts. Thoſe to be appointed by other courts ſhall have been previouſly examined, and certified to be duly qualified, by ſome two members of the general court, and ſhall be removeable for breach of the good behaviour by the court of appeals only, who ſhall be judges of the fact as well as of the law. Two thirds of the members preſent muſt concur in the ſentence.
The juſtices or judges of the inferior courts may be members of the legiſlature.
The judgment of no inferior court ſhall be final, in any civil caſe, of greater value than 50 buſhels of wheat, as laſt rated in the general court for ſettling the allowance to the members of the general aſſembly, nor in any caſe of treaſon, felony, or other crime which ſhould ſubject the party to infamous puniſhment.
In all caſes depending before any court, other than thoſe of impeachments, of appeals, and military courts, facts put in iſſue ſhall be tried by jury, and in all courts whatever witneſſes ſhall give teſtimony viva voce in open court, wherever their attendance can be procured: and all parties ſhall be allowed counſel and compulſory proceſs for their witneſſes.
Fines, amercements, and terms of impriſonment left indefinite by the law, other than for contempts, ſhall be fixed by the jury, triers of the offence.
The governor, two councillors of ſtate, and a judge from each of the ſuperior courts of chancery, common law, and admiralty, ſhall be a council to reviſe all bills which ſhall have paſſed both houſes of aſſembly, in which council the governor, when preſent, ſhall preſide. Every bill before it becomes a law, ſhall be preſented to this council, who ſhall have a right to adviſe its rejection, returning the bill, with their advice and reaſons in writing, to the houſe in which it originated, who ſhall proceed to reconſider the ſaid bill. But if after ſuch reconſideration, two thirds of the houſe ſhall be of opinion the bill ſhould paſs finally, they ſhall paſs and ſend it, with the advice and written reaſons of the ſaid council of reviſion to the other houſe, wherein, if two thirds alſo ſhall be of opinion it ſhould paſs finally, it ſhall thereupon become law; otherwiſe it ſhall not.
If any bill, preſented to the ſaid council, be not,
within one week (evxcluſive of the day of preſenting it) returned by them, with their advice of
rejection and reaſons, to the houſe wherein it
originated, or to the clerk of the ſaid houſe, in caſe
of its adjournment over the expiration of the week,
it ſhall be law from the expiration of the week,
and ſhall then be demandable by the clerk of the
houſe of delegates, to be filed of record in his
office.
The bills which they approve ſhall become law from the time of ſuch approbation, and ſhall then be returned to, or demandable by, the clerk of the houſe of delegates, to be filed of record in his office.
A bill rejected on advice of the council of reviſion, may again be propoſed, during the ſame ſeſſion of aſſembly, with ſuch alterations as will render it conformable to their advice.
The members of the ſaid council of reviſion ſhall be appointed from time to time by the board or court of which they reſpectively are. Two of the executive and two of the judiciary members ſhall be requiſite to do buſineſs: and to prevent the evils of non-attendance, the board and courts may, at any time name all, or ſo many as they will, of their members, in the particular order in which they would chuſe the duty of attendance to devolve from preceding to ſubſequent members, the preceding failing to attend. They ſhall have additionally for their ſervices in this council the ſame allowance as members of aſſembly have.
The confederation is made a part of this conſtitution, ſubject to ſuch future alterations as ſhall be agreed to by the legiſlature of this ſtate, and by all the other confederating ſtates.
The delegates to congreſs ſhall be five in number; any three of whom, and no fewer, may be a repreſentation. They ſhall be appointed by joint ballot of both houſes of aſſembly for any term not exceeding one year, ſubject to be recalled, within the term by joint vote of both, the ſaid houſes. They may at the ſame time be members of the legiſlative or judiciary departments, but not of the executive.
The benefits of the writ of Habeas Corpus ſhall be extended, by the legiſlature, to every perſon within this ſtate, and without free, and ſhall be ſo facilitated that no perſon may be detained in priſon more than ten days after he ſhall have demanded and been refuſed ſuch writ by the judge appointed by law, or if none be appointed, then by any judge of a ſuperior court, nor more than ten days after ſuch a writ ſhall have been ſerved on the perſon detaining him, and no order given, on due examination, for his remandment or diſcharge.
The military ſhall be ſubordinate to the civil power.
Printing-preſſes ſhall be ſubject to no other reſtraint than liableneſs to legal proſecution for falſe facts printed and publiſhed.
Any two of the three branches of government
concuring in opinion, each by the voices of two
thirds of their whole exiſting number, that a
convention is neceſſary for altering this conſtitution,
or correcting breaches of it, they ſhall be authoriſed
to iſſue writs to every county for the election
of ſo many delegates as they are authoriſed to
ſend to the general aſſembly, which elections ſhall be held, and writs returned, as the laws ſhall have
provided in the caſe of elections of delegates to
aſſembly, mutatis, mutandis, and the ſaid delegates
ſhall meet at the uſual place of holding aſſemblies,
three months after date of ſuch writs, and ſhall be
acknowledged to have equal powers with this
preſent convention. The ſaid writs ſhall be ſigned
by all the members approving the ſame.
To introduce this government, the following ſpecial and temporary proviſion is made.
This convention being authoriſed only to amend thoſe laws which conſtituted the form of government, no general diſſolution of the v/hole ſyſtem of laws can be ſuppoſed to have taken place: but all laws in force at the meeting of this convention, and not inconſiſtent with this conſtitution, remain in full force, ſubject to alterations by the ordinary legiſlature.
The preſent general aſſembly ſhall continue till the 42d day after the laſt Monday of November in this preſent year. On the ſaid laſt Monday of November in this preſent year, the ſeveral counties ſhall by their electors qualified as provided by this conſtitution, elect delegates, which for the preſent ſhall be, in number, one for every militia of the ſaid county, according to the lateſt returns in poſſeſſion of the governor, and ſhall alſo chuſe ſenatorial electors in proportion thereto, which ſenatorial electors ſhall meet on the 14th day after the day of their election, at the court-houſe of that county of their preſent diſtrict which would ſtand firſt in an alphabetical arrangement of their counties, and ſhall chuſe ſenators in the proportion fixed by this conſtitution. The elections and returns ſhall be conducted, in all circumſtances not hereby particularly preſcribed, by the ſame perſons and under the ſame forms, as preſcribed by the preſent laws in elections of ſenators and delegates of aſſembly. The ſaid ſenators and delegates ſhall conſtitute the firſt general aſſembly of the new government, and ſhall ſpecially apply themſelves to the procuring an exact return from every county of the number of its qualified electors, and to the ſettlement of the number of delegates to be elected for the enſuing general aſſembly.
The preſent governor ſhall continue in office to the end of the term for which he was elected.
All other officers of every kind ſhall continue in office as they would have done had their appointment been under this conſtitution, and new ones, where new are hereby called for, ſhall be appointed by the authority to which ſuch appointment is referred. One of the preſent judges of the general court, he conſenting thereto, ſhall by joint ballot of both houſes of aſſembly, at their firſt meeting, be transferred to the high court of chancery.