University of Virginia Library

OBSERVATIONS ON THE "DRAUGHT OF A CONSTITUTION
FOR VIRGINIA."[90]

Senate.

The term of two years is too short.
Six years are not more than sufficient.
A Senate is to withstand the occasional impetuosities of the
more numerous branch. The members ought therefore to
derive a firmness from the tenure of their places. It ought to
supply the defect of knowledge and experience incident to the
other branch, there ought to be time given therefore for attaining

the qualifications necessary for that purpose. It ought
finally to maintain that system and steadiness in public affairs
without which no Government can prosper or be respectable.
This cannot be done by a body undergoing a frequent change
of its members. A Senate for six years will not be dangerous
to liberty, on the contrary it will be one of its best guardians.
By correcting the infirmities of popular Government, it will
prevent that disgust agst that form which may otherwise produce
a sudden transition to some very different one. It is no
secret to any attentive & dispassionate observer of ye pol:
situation of ye U. S., that the real danger to republican liberty
has lurked in that cause.

The appointment of Senators by districts seems to be objectionable.
A spirit of locality is inseparable from that mode.
The evil is fully displayed in the County representations, the
members of which are everywhere observed to lose sight of the
aggregate interests of the Community, and even to sacrifice
them to the interests or prejudices of their respective constituents.
In general these local interests are miscalculated.
But it is not impossible for a measure to be accommodated
to the particular interests of every County or district, when
considered by itself, and not so, when considered in relation
to each other and to the whole State; in the same manner as
the interests of individuals may be very different in a state of
nature and in a Political union. The most effectual remedy
for the local bias is to impress on the minds of the Senators an
attention to the interest of the whole Society, by making them
the choice of the whole Society, each citizen voting for every
Senator. The objection here is that the fittest characters
would not be sufficiently known to the people at large. But
in free governments, merit and notoriety of character are
rarely separated, and such a regulation would connect them
more and more together. Should this mode of election be on
the whole not approved, that established in Maryland presents
a valuable alternative. The latter affords perhaps a greater
security for the selection of merit. The inconveniences

chargeable on it are two: first that the Council of electors
favors cabal. Against this the shortness of its existence is a
good antidote, secondly that in a large State the meeting of
the Electors must be expensive if they be paid, or badly
attended if the service is onerous. To this it may be answered
that in a case of such vast importance, the expence, which
could not be great, ought to be disregarded. Whichever of
these modes may be preferred, it cannot be amiss so far to
admit the plan of districts as to restrain the choice to persons
residing in different parts of the State. Such a regulation
will produce a diffusive confidence in the Body, which is not
less necessary than the other means of rendering it useful.
In a State having large towns which can easily unite their
votes the precaution would be essential to an immediate choice
by the people at large. In Maryland no regard is paid to
residence. And what is remarkable vacancies are filled by
the Senate itself. This last is an obnoxious expedient and
cannot in any point of view have much effect. It was probably
meant to obviate the trouble of occasional meetings of
the Electors. But the purpose might have been otherwise
answered by allowing the unsuccessful candidates to supply
vacancies according to the order of their standing on the list
of votes, or by requiring provisional appointments to be made
along with the positive ones. If an election by districts be
unavoidable and the ideas here suggested be sound, the evil
will be diminished in proportion to the extent given to the
districts, taking two or more Senators from each district.

Electors.

The first question arising here is how
far property ought to be made a qualification.
There is a middle way to be taken which corresponds
at once with the Theory of free Government and the lessons of
experience. A freehold or equivalent of a certain value may
be annexed to ye right of voting for Senators, & ye right left
more at large in ye election of the other House. Examples of
this distinction may be found in the Constitutions of several
States particularly if I mistake not, of North Carolina & N.

York. This middle mode reconciles and secures the two
cardinal objects of Government; the rights of persons, and the
rights of property. The former will be sufficiently guarded by
one branch, the latter more particularly by the other. Give
all power to property, and ye indigent will be oppressed. Give
it to the latter and the effect may be transposed. Give a
defensive share to each and each will be secure. The necessity
of thus guarding the rights of property was for obvious
reasons unattended to in the commencement of the Revolution.
In all the Governments which were considered as
beacons to republican Patriots & lawgivers the rights of persons
were subjected to those of property. The poor were
sacrificed to the rich. In the existing state of American population
& American property the two classes of rights were so
little discriminated that a provision for the rights of persons
was supposed to include of itself those of property, and it was
natural to infer from the tendency of republican laws, that
these different interests would be more and more identified.
Experience and investigation have however produced more
correct ideas on this subject. It is now observed that in all
populous countries, the smaller part only can be interested in
preserving the rights of property. It must be foreseen that
America, and Kentucky itself will by degrees arrive at this
stage of Society that in some parts of y Union a very great
advance is already made towards it. It is well understood
that interest leads to injustice as well where the opportunity
is presented to bodies of men as to individuals; to an interested
majority in a Republic, as to the interested minority in any
other form of Government. The time to guard agst this danger
is at the first forming of the Constitution, and in the present
state of population when the bulk of the people have a
sufficient interest in possession or in prospect to be attached
to the rights of property, without being insufficiently attached
to the rights of persons. Liberty not less than justice
pleads for the policy here recommended. If all power be
suffered to slide into hands not interested in the rights of
property which must be the case whenever a majority fall
under that description, one of two things cannot fail to happen;
either they will unite against the other description and
become the dupes & instruments of ambition, or their poverty
& dependence will render them the mercenary instruments of
wealth. In either case liberty will be subverted: in the first
by a despotism growing out of anarchy, in the second, by an
oligarchy founded on corruption.

The second question under this head is whether the ballot
be not a better mode than that of voting viva voce. The comparative
experience of the States pursuing the different modes
is in favor of the first. It is found less difficult to guard
against fraud in that than against bribery in the other.

Exclusions.

Does not The exclusion of Ministers
of the Gospel as such violate a fundamental
principle of liberty by punishing a religious profession
with the privation of a civil right? does it [not] violate another
article of the plan itself which exempts religion from the
cognizance of Civil power? does it not violate justice by at
once taking away a right and prohibiting a compensation for
it? does it not in fine violate impartiality by shutting the door
agst the Ministers of one Religion and leaving it open for those
of every other.

The re-eligibility of members after accepting offices of profit
is so much opposed to the present way of thinking in America
that any discussion of the subject would probably be a waste
of time.

Limits of power.

It is at least questionable whether
death ought to be confined to "Treason
and murder." It would not therefore be prudent to tie the
hands of Government in the manner here proposed. The prohibition
of pardon, however specious in theory would have
practical consequences which render it inadmissible. A single
instance is a sufficient proof. The crime of treason is generally
shared by a number, and often a very great number. It would
be politically if not morally wrong to take away the lives of all

even if every individual were equally guilty. What name
would be given to a severity which made no distinction between
the legal & the moral offence—between the deluded.
multitude and their wicked leaders. A second trial would
not avoid the difficulty; because the oaths of the jury would
not permit them to hearken to any voice but the inexorable
voice of the law.

The power of the Legislature to appoint any other than
their own officers departs too far from the Theory which
requires a separation of the great Depts of Government. One
of the best securities against the creation of unnecessary
offices or tyrannical powers is an exclusion of the authors
from all share in filling the one, or influence in the execution
of the other. The proper mode of appointing to offices will
fall under another head.

Executive Governour.

An election by the Legislature is
liable to insuperable objections. It
not only tends to faction intrigue and corruption, but leaves
the Executive under the influence of an improper obligation
to that department. An election by the people at large, as
in this[91] & several other States—or by Electors as in the appointment
of the Senate in Maryland, or, indeed, by the people
through any other channel than their legislative representatives,
seems to be far preferable. The ineligibility a second
time, though not perhaps without advantages, is also liable
to a variety of strong objections. It takes away one powerful
motive to a faithful & useful administration, the desire of
acquiring that title to a reappointment. By rendering a
periodical change of men necessary, it discourages beneficial
undertakings which require perseverance and system, or, as
frequently happened in the Roman Consulate, either precipitates
or prevents the execution of them. It may inspire
desperate enterprises for the attainment of what is not attainable
by legitimate means. It fetters the judgment and inclination

of the Community; and in critical moments would
either produce a violation of the Constitution or exclude a
choice [which] might be essential to the public safety. Add
to the whole, that by putting the Executive Magistrate in the
situation of the tenant of an unrenewable lease, it would
tempt him to neglect the constitutional rights of his department,
and to connive at usurpations by the Legislative department,
with which he may connect his future ambition
or interest.

The clause restraining the first magistrate from the immediate
command of the military force would be made better by
excepting cases in which he should receive the sanction of the
two branches of the Legislature.

Council of State.

The following variations are suggested.
1. The election to be made by
the people immediately, or thro' some other medium than the
Legislature. 2. A distributive choice should perhaps be secured
as in the case of the Senate. 3. Instead of an ineligibility
a second time, a rotation in the federal Senate, with an
abridgmt of the term, to be substituted.

The appointment to offices is, of all the functions of Republican
& perhaps every other form of Government, the
most difficult to guard against abuse. Give it to a numerous
body, and you at once destroy all responsibility, and create a
perpetual source of faction and corruption. Give it to the
Executive wholly, and it may be made an engine of improper
influence and favoritism. Suppose the power were divided
thus: let the Executive alone make all the subordinate appointments,
and the Govr. and Senate, as in the Fedl Constn,
those of the superior order. It seems particularly fit that the
Judges, who are to form a distinct department should owe
their offices partly to each of the other departments, rather
than wholly to either.

Judiciary.

Much detail ought to be avoided
in the Constitutional regulation of this
Department, that there may be room for changes which may

be demanded by the progressive changes in the state of our
population. It is at least doubtful whether the number of
Courts, the number of Judges, or even ye boundaries of Jurisdiction
ought to be made unalterable but by a revisal of the
Constitution. The precaution seems no otherwise necessary
than as it may prevent sudden modifications of the establishment,
or addition of obsequious Judges, for ye purpose of
evading the checks of the Constn & givg effect to some sinister
policy of the Legisre. But might not the same object be otherwise
attained? by prohibiting, for example, any innovations
in those particulars without the consent of that department:
or without the annual sanction of two or three successive
Assemblies, over & above the other pre-requisites to the
passage of a law.

The model here proposed for a Court of Appeals is not
recommended by experience. It is found as might well be
presumed that the members are always warped in their appellate
decisions by an attachment to the principles and
jurisdiction of their respective Courts, & still more so by the
previous decision on ye case removed by appeal. The only
efficient cure for the evil is to form a Court of Appeals, of distinct
and select Judges. The expence ought not to be admitted
as an objection 1. because the proper administration
of Justice is of too essential a nature to be sacrificed to that
consideration. 2. The number of inferior judges might in
that case be lessened. 3. The whole department may be made
to support itself by a judicious tax on law proceedings.

The excuse for non-attendance would be a more proper
subject of enquiry somewhere else than in the Court to which
the party belonged. Delicacy, mutual convenience &c, would
soon reduce the regulation to mere form; or if not, it might
become a disagreeable source of little irritations among ye
members. A certificate from the local Court or some other
local authority where the party might reside or happen to be
detained from his duty, expressing the cause of absence as
well as that it was judged to be satisfactory, might be safely

substituted. Few Judges would improperly claim their
wages, if such a formality stood in the way. These observations
are applicable to the Council of State.

A Court of Impeachments is among the most puzzling
articles of a Republican Constitution; and it is far more easy
to point out defects in any plan than to supply a cure for them.
The diversified expedients adopted in the Constitutions of the
several States prove how much the compilers were embarrassed
on this subject. The plan here proposed varies from all
of them, and is perhaps not less than any a proof of the difficulties
which pressed the ingenuity of its author. The remarks
arising on it are 1. That it seems not to square with
reason that the right to impeach should be united to that of
trying the impeachment, & consequently in a proportional
degree, to that of sharing in the appointment of, or influence
on the Tribunal to which the trial may belong. 2. As the
Executive & Judiciary would form a majority of the Court,
and either have a right to impeach, too much might depend
on a combination of these departments. This objection
would be still stronger if the members of the Assembly were
capable as proposed of holding offices, and were amenable in
that capacity to the Court. 3. The H. of Delegates and either
of those departments could appt a majority of ye Court.
Here is another danger of combination, and the more to be
apprehended as that branch of ye Legisl wd also have the
right to impeach, a right in their hands of itself sufficiently
weighty; and as the power of the Court wd extend to the
head of the Ex, by whose independence the constitl rights of
that department are to be secured agst Legislative usurpations.
4. The dangers in the two last cases would be still more
formidable, as the power extends not only to deprivation,
but to future incapacity of office. In the case of all officers
of sufficient importance to be objects of factious persecution,
the latter branch of power is in every view of a delicate nature.
In that of the Chief Magistrate it seems inadmissible, if he
be chosen by the Legislature; and much more so, if immediately

by the people themselves. A temporary incapacitation
is ye most that cd be properly authorised.

The 2 great desiderata in a Court of Impeachts are 1. impartiality.
2. respectability—the first in order to a right,
the second in order to a satisfactory decision. These characteristics
are aimed at in the following modification. Let the
Senate be denied the right to impeach. Let 1/3 of the members
be struck out, by alternate nominations of the prosecutors &
party impeached; the remaining 2/3 to be the stamen of the
Court. When the H. of Del: impeach let the Judges, or a
certain proportion of them—and the Council of State be associated
in the trial, when the Govr or Council impeaches, let
the Judges only be associated; when the Judges impeach let
the Council only be associated. But if the party impeached
by the H. of Dels be a member of the Ex. or Judicy, let that
of which he is a member not be associated. If the party
impeached belong to one & be impeached by the other of these
branches, let neither of them be associated the decision being
in this case left with the Senate alone; or if that be thought
exceptionable, a few members might be added by ye H. of Ds.
2/3 of the Court should in all cases be necessary to a conviction,
& the Chief Magistrate at least should be exempt from a sentence
of perpetual if not of temporary incapacity. It is extremely
probable that a critical discussion of this outline may
discover objections which do not occur. Some do occur; but
appear not to be greater than are incident to any different
modification of the Tribunal.

The establishment of trials by Jury & viva voce testimony
in all cases and in all Courts, is, to say the least, a delicate
experiment; and would most probably be either violated, or
be found inconvenient.

Council of Revision.

A revisionary power is meant as a
check to precipitate, to unjust, and to
unconstitutional laws. These important ends would it is
conceded be more effectually secured, without disarming the
Legislature of its requisite authority, by requiring bills to be

separately communicated to the Exec: & Judicy depts If
either of these object, let 2/3, if both 3/4 of each House be necessary
to overrule the objection; and if either or both protest
agst a bill as violating the Constitution, let it moreover be
suspended notwithstanding the overruling proportion of the
Assembly, until there shall have been a subsequent election
of the H. of Ds and a re-passage of the bill by 2/3 or 3/4 of both
Houses, as the case may be. It sd not be allowed the Judges or
ye. Executive to pronounce a law thus enacted unconstitul &
invalid.

In the State Constitutions & indeed in the Fedl one also,
no provision is made for the case of a disagreement in expounding
them; and as the Courts are generally the last in
making ye decision, it results to them by refusing or not refusing
to execute a law, to stamp it with its final character.
This makes the Judiciary Dept paramount in fact to the Legislature,
which was never intended and can never be proper.

The extension of the Habs Corps to the cases in which it
has been usually suspended, merits consideration at least. If
there be emergencies which call for such a suspension, it can
have no effect to prohibit it, because the prohibition will
assuredly give way to the impulse of the moment; or rather
it will have the bad effect of facilitating other violations that
may be less necessary. The Exemption of the press from
liability in every case for true facts is also an innovation and
as such ought to be well considered. This essential branch
of liberty is perhaps in more danger of being interrupted by
local tumults, or the silent awe of a predominant party, than
by any direct attacks of Power.