# Notes on the State of Virginia (1853)/Query 13

QUERY XIII.

THE CONSTITUTION OF THE STATE AND ITS SEVERAL CHARTERS?

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 Of this grant, however, no particular notice need be taken, as it was superseded by letters patent of the same King, of May 23, 1609, to the Earl of Salisbury and others, incorporating them by the name of “the Treasurer and Company of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 Northwest, 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; authorizing them to carry thither any persons who should consent to go, freeing them forever 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 of 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 authorized 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 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 partizans 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 color 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 ey 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 ey 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 ey 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 ey 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 ffiiftie acres of land for every person transported in that collonie shall continue as formerly granted.

“7ly, That ey people of Virginia have free trade as ey people of England do enjoy to all places and with all nations according to ey 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 noe charge shall be required from this country in respect of this present ffleet.

“10ly, That for the future settlement of the countrey in their due obedience, the Engagement shall be tendred to all ey 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 ey use of the booke of common prayer shall be permitted for one yeare ensueinge with referrence to the consent of ey 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 ey 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 ey 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 ey commissioners for the parliament subscribeing these articles engage themselves & the honour of the parliament for the full performance thereof; and that the present governour & ey councill & the burgesses do likewise subscribe & engage the whole collony on their parts.

 Rich. Bennett.———Seale. .mw-parser-output .nowrap,.mw-parser-output .nowrap a:before,.mw-parser-output .nowrap .selflink:before{white-space:nowrap}Wm. 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 and countrey to make opposition against the said ffleet whereby assured danger appearinge of the ruine & destruction of ey 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 & granted to signe & confirme under our hands, scales, & by our oath, Articles bearinge date with theise presents, and do further declare that by ey 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 hav^e 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 & scales this 12th of March 1651. Richard Bennett.——Seale. Wm. Claiborne.——Seale. Edm. Curtis.——Seale.”

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 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 entitled 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
miles.
Fighting
men.
Delegates.   Senators.

 Between the sea coast and falls ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ of the rivers
[5]11,205 19,012 71 12
 Between the falls of the rivers ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ and the Blue Ridge of mountains
18,759 18,828 46  8
 Between the Blue Ridge and ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ the Alleghaney
11,911  7,673 16  2
Between the Alleghaney and Ohio [6]79,650  4,458 16  2

Total  121,525  49,971 149  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 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. 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 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 dependent 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 Cæsar, 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,

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 common law as well as common right.[8] It is the natural law of every assembly of men, whose numbers are not fixed by any other law.[9] 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 favor of power is stronger than an hundred against it. The House of Delegates, therefore, have lately[10] 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.