University of Virginia Library

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166

TO CALEB WALLACE.[39]

Dr Sir,—Your favour of the 12th of July was safely
delivered to me by Mr. Craig. I accept with pleasure
your proposed exchange of Western for Eastern
intelligence and though I am a stranger to parental
ties can sufficiently conceive the happiness of which
they are a source to congratulate you on your possession
of two fine sons & a Daughter. I do not smile
at the Idea of transplanting myself into your wilderness.
Such a change of my abode is not indeed probable
yet I have no Local partialities which can keep
me from any place which promises the greatest real
advantages, but if such a removal was not even possible
I should nevertheless be ready to communicate as
you desire my Ideas towards a constitution of Government
for the State in embryo. I pass over the
general policy of the measure which calls for such a
provision. It has been unanimously embraced by
those who being most interested in it must have best
considered it, & will I dare say be with equal unanimity
acceded to by the other party which is to be
consulted. I will first offer some general remarks on
the Subject, & then answer your several queries.

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1.

• The Legislative Department ought by all means,
  as I think to include a Senate constituted on such
  principles as will give wisdom and steadiness to legislation.
  The want of these qualities is the grievance
  complained of in all our republics. The want of
  fidelity in the administration of power having been
  the grievance felt under most Governments, and by
  the American States themselves under the British
  Government, it was natural for them to give too exclusive
  an attention to this primary attribute. The
  Senate of Maryland with a few amendments is a
  good model. Trial has I am told verified the expectations
  from it. A Similar one made a part of
  our constitution as it was originally proposed but the
  inexperience & jealousy of our then Councils, rejected
  it in favor of our present Senate a worse could
  hardly have been substituted & yet, bad as it is, it is
  often a useful bit in the mouth of the house of Delegates.
  Not a single Session passes without instances
  of sudden resolutions by the latter of which they repent
  in time to intercede privately with the Senate
  for their Negative. For the other branch models
  enough may be found care ought however to be taken
  against its becoming too numerous, by fixing the
  number which it is never to exceed. The quorum,
  wages, and privileges of both branches ought also to
  be fixed. A majority seems to be the natural quorum.
  The wages of the members may be made payable
  for—years to come in the medium value of wheat
  for years preceding as the same shall from period to
  period be rated by a respectable Jury appointed for
  

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  that purpose by the Supreme Court. The privileges
  of the members ought not in my opinion to extend
  beyond an exemption of their persons and equipage
  from arrests during the time of their actual service.
  If it were possible it would be well to define the
  extent of the Legislative power but the nature of it
  seems in many respects to be indefinite. It is very
  practicable however to enumerate the essential exceptions.
  The Constitution may expressly restrain
  them from medling with religion—from abolishing
  Juries—from taking away the Habeas corpus—from
  forcing a citizen to give evidence against himself—
  from controuling the press—from enacting retrospective
  laws at least in criminal cases, from abridging
  the right of suffrage, from taking private property
  for public use without paying its full Value from
  licensing the importation of Slaves, from infringing
  the confederation, &c &c.

  As a further security against fluctuating & indigested
  laws the Constitution of New York has provided
  a Council of Revision. I approve much of
  such an institution & believe it is considered by the
  most intelligent citizens of that State as a valuable
  safeguard both to public interests & to private rights.
  Another provision has been suggested for preserving
  System in Legislative proceedings which to some may
  appear still better. It is that a standing committee
  composed of a few select & skilful individuals should
  be appointed to prepare bills on all subjects which
  they may judge proper to be submitted to the Legislature
  at their meetings & to draw bills for them
  

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  during their Sessions. As an antidote both to the
  jealousy & danger of their acquiring an improper
  influence they might be made incapable of holding
  any other Office Legislative, Executive, or Judiciary.
  I like this Suggestion so much that I have had
  thoughts of proposing it to our Assembly, who give
  almost as many proofs as they pass laws of their
  need of some such Assistance.

2

• The Executive Department. Though it claims
  the 2d place is not in my estimation entitled to it by its
  importance all the great powers which are properly executive
  being transferred to the fœderal Government.
  I have made up no final opinion whether the first Magistrate
  should be chosen by the Legislature or the people
  at large or whether the power should be vested in
  one man assisted by a council or in a council of which
  the President shall be only primus inter pares. There
  are examples of each in the U. States and probably
  advantages & disadvantages attending each. It is
  material I think that the number of members should
  be small & that their Salaries should be either unalterable
  by the Legislature or alterable only in such
  manner as will not affect any individual in place.
  Our Executive is the worst part of a bad Constitution.
  The Members of it are dependent on the Legislature
  not only for their wages but for their reputation
  and therefore are not likely to withstand usurpations
  of that branch; they are besides too numerous and
  expensive, their organization vague & perplexed & to
  crown the absurdity some of the members may without
  any new appointment continue in Office for life
  

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  contrary to one of the Articles of the Declaration of
  Rights.

3d

• The Judiciary Department merits every care
  Its efficacy is Demonstrated in G. Brittain where it
  maintains private Right against all the corruptions of
  the two other departments & gives a reputation to
  the whole Government which it is not in itself entitled
  to. The main points to be attended to are 1. that
  the Judges should hold their places during good behavior
  2. that their Salaries should be either fixed like
  the wages of the Representatives or not be alterable
  so as to affect the Individuals in office. 3 that their
  Salaries be liberal The first point is obvious; without
  the second the independence aimed at by the first
  will be ideal only; without the 3d the bar will be
  superior to the bench which destroys all security for a
  Systematick administration of Justice after securing
  these essential points, I should think it unadvisable
  to descend so far into detail as to bar any future
  Modification of this department which experience
  may recommend An enumeration of the Principal
  courts with Power to the Legislature to Institute
  inferior Courts may suffice. The Admiralty business
  can never be extensive in your situation and may be
  referred to one of the other Courts. With regard to
  a Court of Chancery as distinct from a Court of Law,
  the reasons of Lord Bacon on the affirmative side
  outweigh in my Judgment those of Lord Kaims on
  the other side. Yet I should think it best to leave
  this important question to be decided by future lights
  without tying the hands of the Legislature one way
  

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  or the other. I consider our county courts as on a
  bad footing and would never myself consent to copy
  them into another constitution.

All the States seem to have seen the necessity of
providing for Impeachments but none of them to
have hit on an unexceptionable Tribunal. In some
the trial is referred to the Senate in others to the
Executive, in others to the Judiciary department it
has been suggested that a tribunal composed of members
from each Department would be better than
either and I entirely concur in that opinion. I proceed
next to your queries.

1.

• "Whether is a representation according to num"
  bers, or property, or in a joint proportion to both,
  " the most Safe? or is a representation by counties
  " preferable to a more equitable mode that will be diffi"cult
  to adjust?" Under this question may be considered
  1. the right of Suffrage. 2 the mode of
  suffrage. 3 the Plan of representation As to the
  1. I think the extent which ought to be given to this
  right a matter of great delicacy and of critical importance.
  To restrain it to the land holders will in
  time exclude too great a proportion of citizens; to
  extend it to all citizens without regard to property, or
  even to all who possess a pittance may throw too
  much power into hands which will either abuse it
  themselves or sell it to the rich who will abuse it. I
  have thought it might be a good middle course to
  narrow this right in the choice of the least popular,
  & to enlarge it in that of the more popular branch
  of the Legislature. There is an example of this
  

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  Distinction in N. Carolina if in none of the other States.
  How it operates or is relished by the people I cannot
  say. It would not be surprising if in the outset at
  least it should offend the sense of equality which
  reigns in a free Country. In a general view I see
  no reason why the rights of property which chiefly
  bears the burden of Government & is so much an
  object of Legislation should not be respected as well
  as personal rights in the choice of Rulers. It must
  be owned indeed that property will give influence to
  the holder though it should give him no legal privileges
  and will in general be safe on that as well as on
  other Accounts especially if the business of legislation
  be guarded with the provisions hinted at 2 As to
  the mode of suffrage I lean strongly to that of the ballot,
  notwithstanding the objections which lie against
  it It appears to me to be the only radical cure for
  those arts of Electioneering which poison the very
  fountain of Liberty The States in which the Ballott
  has been the Standing mode are the only instances in
  which elections are tolerably chaste and those arts in
  disgrace. If it should be thought improper to fix
  this mode by the constitution I should think it at
  least necessary to avoid any constitutional bar to a
  future adoption of it[40] 3 By the Plan of representation
  I mean 1. the classing of the Electors 2 the
  proportioning of the representatives to each class.
  The first cannot be otherwise done than by geographical
  description as by Counties. The second may
  

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  easily be done in the first instance either by comprising
  within each county an equal number of electors;
  or by proportioning the number of representatives of
  each county to its number of electors The difficulty
  arises from the disproportionate increase of electors
  in different Counties. There seem to be two methods
  only by which the representation can be equalized
  from time to time. The 1 is to change the bounds
  of the counties; the 2d. to change the number of representatives
  allotted to them respectively, as the
  former would not only be most troublesome & expensive
  but would involve a variety of other adjustments
  the latter method is evidently the best. Examples
  of a Constitutional provision for it exists in
  several of the States. In some it is to be executed
  periodically in others, pro-re nata. The latter seems
  most accurate and very practicable I have already
  intimated the propriety of fixing the number of representatives,
  which ought never to be exceeded I should
  suppose 150 or even 100, might safely be made the
  ne plus ultra for Kentucky

2.

• "Which is to be preferred an Annual, Triennial,
  "or Septennial Succession to Offices or frequent elec"tions
  without limitations in choice or that officers
  "when chosen should continue quamdiu se bene ges"serint?"
  The rule ought no doubt to be different
  in the different Departments of power. For one part
  of the Legislature Annual Elections will I suppose
  be held indispensably though some of the ablest
  Statesmen & soundest Republicans in the U. States
  are in favor of triennial. The great Danger in
  

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  departing from annual elections in this case lies in the
  want of some other natural term to limit the departure.
  For the other branch 4 or 5 years may be the
  period. For neither branch does it seem necessary
  or proper to prohibit an indefinite re-eligibility. With
  regard to the Executive if the elections be frequent
  & particularly if made as to any member of it by
  the people at large a re-eligibility cannot I think be
  objected to, if they be unfrequent, a temporary or
  perpetual incapacitation according to the degree of
  unfrequency at least in the case of the first Magistrate
  may not be amiss. As to the Judiciary department
  enough has been said & as to the Subordinate
  officers civil & Military nothing need be said more
  than that a regulation of their appointments may
  under a few restrictions be safely trusted to the
  Legislature.

3

• "How far may the same person with propriety
  "be employed in the different departments of Gov"ernment
  in an infant country where the counsel of
  "every individual may be needed?" Temporary deviations
  from fundamental principles are always more
  or less dangerous. When the first pretext fails, those
  who become interested in prolonging the evil will
  rarely be at a loss for other pretexts. The first
  precedent too familiarises the people to the irregularity,
  lessens their veneration for those fundamental
  principles, & makes them a more easy prey to ambition
  & self Interest. Hence it is that abuses of
  every kind when once established have been so often
  found to perpetuate themselves. In this caution
  

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  I refer chiefly to an improper mixture of the three
  great Departments within the State. A Delegation
  to Congress is I conceive compatible with either.

4

• "Should there be a periodical review of the
  Constitution?" Nothing appears more elegible in
  theory nor has sufficient trial perhaps been yet
  made to condemn it in practice. Pennsylvania has
  alone adopted the expedient. Her citizens are much
  divided on the subject of their Constitution in general
  & probably on this part of it in particular. I am
  inclined to think though am far from being certain,
  that it is not a favorite part even with those who
  are fondest of their Constitution. another plan
  has been thought of which might perhaps Succeed
  better and would at the same time be a safeguard to
  the equilibrium of the constituent Departments of
  Government. This is that a Majority of any two
  of the three departments should have authority to
  call a plenipotentiary convention whenever they may
  think their constitutional powers have been Violated
  by the other Department or that any material part
  of the Constitution needs amendment In your situation
  I should think it both imprudent & indecent not
  to leave a door open for at least one revision of your
  first Establishment, imprudent because you have
  neither the same resources for supporting nor the
  same lights for framing a good establishment now
  as you will have 15 or 20 Years hence, indecent
  because an handful of early settlers ought not to preclude
  a populous Country from a choice of the Government
  under which they & their posterity are to live.
  

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  Should your first Constitution be made thus temporary
  the objections against an intermediate union of offices
  will be proportionably lessened. Should a revision
  of it not be made thus necessary & certain there
  will be little probability of its being ever revised.
  Faulty as our Constitution is as well with regard to
  the Authority which formed it as to the manner in
  which it is formed the Issue of an experiment has
  taught us the difficulty of amending it: & although
  the issue might have proceeded from the unseasonableness
  of the time yet it may be questioned whether
  at any future time the greater depth to which it will
  have stricken its roots will not counterbalance any
  more auspicious circumstances for overturning it.

5 & 6

• "Or will it be better unalterably to fix
  "some leading Principles in Government and make
  "it consistant for the Legislature to introduce such
  "changes in lesser matters as may become expedi"ent?
  can censors be provided that will impartially
  "point out deficiencies in the Constitution & the
  "Violations that may happen"

Answers on these points may be gathered from
what has been already said.

I have been led to offer my sentiments in this
loose form rather than to attempt a delineation of
such a Plan of government as would please myself
not only by my Ignorance of many local circumstances
& opinions which must be consulted in such
a work but also by the want of sufficient time for it.
At the receipt of your letter I had other employment
and what I now write is in the midst of preparations

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I am sorry that it is not in my power to give you
some satisfactory information concerning the Mississippi.
A Minister from Spain has been with Congress
for some time & is authorised as I understand
to treat on whatever subjects may concern the
two nations. If any explanations or propositions
have passed between him & the Minister of Congress,
they are as yet in the list of Cabinet Secrets,
as soon as any such shall be made Public & come to
my knowledge, I shall take the first opportunity of
transmitting them. Wishing you & your family all
happiness,