University of Virginia Library

1852. COUNCIL, Votes in.—

In answer to your inquiry whether, in the early times of
our [Virginia] goyernment, where the Council
was divided, the practice was for the Governor
to give the deciding vote? I must observe that,

correctly speaking, the Governor not being a
counsellor, his vote could make no part of an
advice of Council. That would be to place an
advice on their journals which they did not
give, and could not give because of their equal
division. But he did what was equivalent in
effect. While I was in the administration,
no doubt was ever suggested that where the
Council, divided in opinion, could give no advice,
the Governor was free and bound to act
on his own opinion and his own responsibility.
Had this been a change of the practice of my
predecessor, Mr. Henry, the first Governor, it
would have produced some discussion, which
it never did. Hence, I conclude it was the
opinion and practice from the first institution of
the government. During Arnold's and Cornwallis's
invasion, the Council dispersed to their
several homes, to take care of their families.
Before their separation, I obtained from them a
capitulary of standing advices for my government
in such cases as ordinarily occur: such as
the appointment of militia officers, justices, inspectors,
&c., on the recommendations of the
courts; but in the numerous and extraordinary
occurrences of an invasion, which could not be
foreseen, I had to act on my own judgment
and my own responsibility. The vote of general
approbation, at the session of the succeeding
winter, manifested the opinion of the Legislature,
that my proceedings had been correct.
General Nelson, my successor, staid mostly, I
think, with the army; and I do not believe his
Council followed his camp, although my memory
does not enable me to affirm the fact. Some
petitions against him for impressment of property
without authority of law, brought his proceedings
before the next Legislature; the questions
necessarily involved were whether necessity,
without express law, could justify the impressment,
if it could, whether he could order
it without the advice of Council. The approbation
of the Legislature amounted to a decision
of both questions. I remember this case the
more especially, because I was then a member of
the Legislature, and was one of those who supported
the Governor's proceedings, and I think
there was no division of the House on the question.
I believe the doubt was first suggested
in Governor Harrison's time, by some member
of the Council, on an equal division. Harrison,
in his dry way, observed that instead of one governor
and eight counsellors, there would then
be eight governors and one counsellor, and continued,
as I understand, the practice of his predecessors.
Indeed, it is difficult to suppose it
could be the intention of those who framed the
Constitution, that when the Council should be
divided, the government should stand still; and
the more difficult as to a constitution formed
during a war, and for the purpose of carrying
on that war, that so high an officer as their Governor
should be created and salaried, merely to
act as the clerk and authenticator of the votes
of the Council. No doubt it was intended that
the advice of the Council should control the
Governor. But the action of the controlling
power being withdrawn, his would be left free
to proceed on its own responsibility. Where
from division, absence, sickness, or other obstacle,
no advice could be given, they could not
mean that their Governor, the person of their
peculiar choice and confidence, should stand by,
an inactive spectator, and let their government
tumble to pieces for want of a will to direct it.
In executive cases, where promptitude and decision
are all important, an adherence to the
letter of a law against its probable intentions
(for every law must intend that itself shall be
executed), would be fraught with incalculable
danger. Judges may await further legislative
explanations, but a delay of executive action
might produce irretrievable ruin. The State
is invaded, militia to be called out, an army
marched, arms and provisions to be issued from
the public magazines, the Legislature to be convened,
and the Council is divided. Can it be believed
to have been the intention of the framers
of the Constitution, that the Constitution itself
and their constituents with it should be destroyed
for want of a will to direct the resources
they had provided for its preservation? Before
such possible consequences all verbal excuses
must vanish; construction must be made
secundum arbitrium boni viri, and the constitution
be rendered a practicable thing. That
exposition of it must be vicious, which would
leave the nation under the most dangerous
emergencies without a directing will. The cautious
maxims of the bench, to seek the will of
the legislator and his words only, are proper
and safe for judicial government. They act ever
on an individual case only, the evil of which is
partial, and gives time for correction. But an
instant of delay in executive proceedings May
be fatal to the whole nation. They must not,
therefore, be laced up in the rules of the judiciary
department. They must seek the intention
of the legislator in all the circumstances
which may indicate it in the history of the day,
in the public discussions, in the general opinion
and understanding, in reason and in practice.
The three great departments having distinct
functions to perform, must have distinct rules
adapted to them. Each must act under its own
rules, those of no one having any obligation
on either of the others. Where the opinion
first began that a governor could not act when
his council could not or would not advise, I
am uniformed. Probably not till after the
war; for, had it prevailed then, no militia could
have been opposed to Cornwallis, nor necessaries
furnished to the opposing army of Lafayette.—
To James Barbour. Washington ed. vi, 38. Ford ed., ix, 335.
(M. 1812)