The _Monacans_ and their friends, better_The Writings of Thomas Jefferson, Vol. 8 (of 9) Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private

name of _Tuscaroras_, were probably connected with the Massawomecs,

or Five Nations. For though we are[46] told their languages

were so different that the intervention of interpreters was

necessary between them, yet do we also[47] learn that the Erigas,

a nation formerly inhabiting on the Ohio, were of the same

original stock with the Five Nations, and that they partook also

of the Tuscarora language. Their dialects might, by long separation,

have become so unlike as to be unintelligible to one another.

We know that in 1712, the Five Nations received the

Tuscaroras into their confederacy, and made them the Sixth Nation.

They received the Meherrins and Tuteloes also into their

protection; and it is most probable, that the remains of many

other of the tribes, of whom we find no particular account, retired

westwardly in like manner, and were incorporated with

one or the other of the western tribes. (5.)

I know of no such thing existing as an Indian monument; for

I would not honor with that name arrow points, stone hatchets,

stone pipes, and half-shapen images. Of labor on the large scale,

I think there is no remain as respectable as would be a common

ditch for the draining of lands; unless indeed it would be

the barrows, of which many are to be found all over this country.

These are of different sizes, some of them constructed of

earth, and some of loose stones. That they were repositories of

the dead, has been obvious to all; but on what particular occasion

constructed, was a matter of doubt. Some have thought

they covered the bones of those who have fallen in battles

fought on the spot of interment. Some ascribed them to the

custom, said to prevail among the Indians, of collecting, at certain

periods, the bones of all their dead, wheresoever deposited at

the time of death. Others again supposed them the general

sepulchres for towns, conjectured to have been on or near these

grounds; and this opinion was supported by the quality of the

lands in which they are found, (those constructed of earth being

generally in the softest and most fertile meadow-grounds on river

sides,) and by a tradition, said to be handed down from the aboriginal

Indians, that, when they settled in a town, the first person

who died was placed erect, and earth put about him, so as to

cover and support him; that when another died, a narrow passage

was dug to the first, the second reclined against him, and

the cover of earth replaced, and so on. There being one of

these in my neighborhood, I wished to satisfy myself whether

any, and which of these opinions were just. For this purpose I

determined to open and examine it thoroughly. It was situated

on the low grounds of the Rivanna, about two miles above its

principal fork, and opposite to some hills, on which had been an

Indian town. It was of a spheroidical form, of about forty feet

diameter at the base, and had been of about twelve feet altitude,

though now reduced by the plough to seven and a half, having

been under cultivation about a dozen years. Before this it was

covered with trees of twelve inches diameter, and round the base

was an excavation of five feet depth and width, from whence

the earth had been taken of which the hillock was formed. I

first dug superficially in several parts of it, and came to collections

of human bones, at different depths, from six inches to

three feet below the surface. These were lying in the utmost

confusion, some vertical, some oblique, some horizontal, and directed

to every point of the compass, entangled and held together

in clusters by the earth. Bones of the most distant parts were

found together, as, for instance, the small bones of the foot in

the hollow of a scull; many sculls would sometimes be in contact,

lying on the face, on the side, on the back, top or bottom,

so as, on the whole, to give the idea of bones emptied promiscuously

from a bag or a basket, and covered over with earth,

without any attention to their order. The bones of which the

greatest numbers remained, were sculls, jaw-bones, teeth, the

bones of the arms, thighs, legs, feet and hands. A few ribs remained,

some vertebræ of the neck and spine, without their processes,

and one instance only of the[48] bone which serves as a base

to the vertebral column. The sculls were so tender, that they

generally fell to pieces on being touched. The other bones were

stronger. There were some teeth which were judged to be

smaller than those of an adult; a scull, which on a slight view,

appeared to be that of an infant, but it fell to pieces on being

taken out, so as to prevent satisfactory examination; a rib, and a

fragment of the under-jaw of a person about half grown; another

rib of an infant; and a part of the jaw of a child, which had not

cut its teeth. This last furnishing the most decisive proof of the

burial of children here, I was particular in my attention to it.

It was part of the right half of the under-jaw. The processes,

by which it was attenuated to the temporal bones, were entire, and

the bone itself firm to where it had been broken off, which, as

nearly as I could judge, was about the place of the eye-tooth. Its

upper edge, wherein would have been the sockets of the teeth, was

perfectly smooth. Measuring it with that of an adult, by placing

their hinder processes together, its broken end extended to the

penultimate grinder of the adult. This bone was white, all the

others of a sand color. The bones of infants being soft, they probably

decay sooner, which might be the cause so few were found

here. I proceeded then to make a perpendicular cut through the

body of the barrow, that I might examine its internal structure.

This passed about three feet from its centre, was opened to the

former surface of the earth, and was wide enough for a man to

walk through and examine its sides. At the bottom, that is, on

the level of the circumjacent plain, I found bones; above these

a few stones, brought from a cliff a quarter of a mile off, and

from the river one-eighth of a mile off; then a large interval of

earth, then a stratum of bones, and so on. At one end of the

section were four strata of bones plainly distinguishable; at the

other, three; the strata in one part not ranging with those in another.

The bones nearest the surface were least decayed. No

holes were discovered in any of them, as if made with bullets,

arrows, or other weapons. I conjectured that in this barrow

might have been a thousand skeletons. Every one will readily

seize the circumstances above related, which militate against the

opinion, that it covered the bones only of persons fallen in

battle; and against the tradition also, which would make it the

common sepulchre of a town, in which the bodies were placed

upright, and touching each other. Appearances certainly indicate

that it has derived both origin and growth from the accustomary

collection of bones, and deposition of them together; that

the first collection had been deposited on the common surface

of the earth, a few stones put over it, and then a covering of

earth, that the second had been laid on this, had covered more

or less of it in proportion to the number of bones, and was then

also covered with earth; and so on. The following are the

particular circumstances which give it this aspect. 1. The

number of bones. 2. Their confused position. 3. Their being

in different strata. 4. The strata in one part having no correspondence

with those in another. 5. The different states of decay

in these strata, which seem to indicate a difference in the

time of inhumation. 6. The existence of infant bones among

them.

But on whatever occasion they may have been made, they are

of considerable notoriety among the Indians; for a party passing,

about thirty years ago, through the part of the country where

this barrow is, went through the woods directly to it, without

any instructions or inquiry, and having staid about it for some

time, with expressions which were construed to be those of

sorrow, they returned to the high road, which they had left

about half a dozen miles to pay this visit, and pursued their journey.

There is another barrow much resembling this, in the

low grounds of the south branch of Shenandoah, where it is

crossed by the road leading from the Rockfish gap to Staunton.

Both of these have, within these dozen years, been cleared of

their trees and put under cultivation, are much reduced in their

height, and spread in width, by the plough, and will probably

disappear in time. There is another on a hill in the Blue

Ridge of mountains, a few miles north of Wood's gap, which is

made up of small stones thrown together. This has been opened

and found to contain human bones, as the others do. There are

also many others in other parts of the country.

Great question has arisen from whence came those aboriginals

of America? Discoveries, long ago made, were sufficient to show

that the passage from Europe to America was always practicable,

even to the imperfect navigation of ancient times. In going

from Norway to Iceland, from Iceland to Greenland, from Greenland

to Labrador, the first traject is the widest; and this having

been practised from the earliest times of which we have any account

of that part of the earth, it is not difficult to suppose that

the subsequent trajects may have been sometimes passed. Again,

the late discoveries of Captain Cook, coasting from Kamschatka

to California, have proved that if the two continents of Asia and

America be separated at all, it is only by a narrow strait. So that

from this side also, inhabitants may have passed into America;

and the resemblance between the Indians of America and the

eastern inhabitants of Asia, would induce us to conjecture, that

the former are the descendants of the latter, or the latter of the

former; excepting indeed the Esquimaux, who, from the same

circumstance of resemblance, and from identity of language,

must be derived from the Greenlanders, and these probably from

some of the northern parts of the old continent. A knowledge

of their several languages would be the most certain evidence

of their derivation which could be produced. In fact, it is the

best proof of the affinity of nations which ever can be referred

to. How many ages have elapsed since the English, the Dutch,

the Germans, the Swiss, the Norwegians, Danes and Swedes

have separated from their common stock? Yet how many more

must elapse before the proofs of their common origin, which exist

in their several languages, will disappear? It is to be lamented

then, very much to be lamented, that we have suffered

so many of the Indian tribes already to extinguish, without our

having previously collected and deposited in the records of literature,

the general rudiments at least of the languages they spoke.

Were vocabularies formed of all the languages spoken in North

and South America, preserving their appellations of the most

common objects in nature, of those which must be present to

every nation barbarous or civilized, with the inflections of their

nouns and verbs, their principles of regimen and concord, and

these deposited in all the public libraries, it would furnish opportunities

to those skilled in the languages of the old world to compare

them with these, now, or at any future time, and hence to

construct the best evidence of the derivation of this part of the

human race.

But imperfect as is our knowledge of the tongues spoken in

America, it suffices to discover the following remarkable fact:

Arranging them under the radical ones to which they may be

palpably traced, and doing the same by those of the red men of

Asia, there will be found probably twenty in America, for one

in Asia, of those radical languages, so called because if they

were ever the same they have lost all resemblance to one another.

A separation into dialects may be the work of a few

ages only, but for two dialects to recede from one another till

they have lost all vestiges of their common origin, must require

an immense course of time; perhaps not less than many people

give to the age of the earth. A greater number of those radical

changes of language having taken place among the red men of

America, proves them of greater antiquity than those of Asia.

I will now proceed to state the nations and numbers of the

Aborigines which still exist in a respectable and independent

form. And as their undefined boundaries would render it difficult

to specify those only which may be within any certain

limits, and it may not be unacceptable to present a more general

view of them, I will reduce within the form of a catalogue all

those within, and circumjacent to, the United States, whose

names and numbers have come to my notice. These are taken

from four different lists, the first of which was given in the year

1759 to General Stanwix by George Croghan, deputy agent for

Indian affairs under Sir William Johnson; the second was drawn

up by a French trader of considerable note, resident among the

Indians many years, and annexed to Colonel Bouquet's printed

account of his expedition in 1764. The third was made out by

Captain Hutchins, who visited most of the tribes, by order, for

the purpose of learning their numbers, in 1768; and the fourth

by John Dodge, an Indian trader, in 1779, except the numbers

marked *, which are from other information.

INDIAN TRIBES.

+----------------------------------------------------------------------+

|Northward and Westward of the United States. |

+----------------------+-------+--------+---------+--------------------+

| | 1759. | 1764. | 1768. | |

+----------------------+-------+--------+---------+--------------------+

|Oswegatchies | .... | .... | 100 | At Swagatchy, on |

|Connasedagoes | .... | }| | |

|Cohunnewagoes | .... | 200}| 300 | Near Montreal. |

|Orondocs | .... | .... | 100 | Near Trois |

|Abenakies | .... | 350 | 150 | Near Trois |

|Little Alkonkins | .... | .... | 100 | Near Trois |

|Michmacs | .... | 700 | | River St. Laurence.|

|Amelistes | .... | 550 | | River St. Laurence.|

|Chalas | .... | 130 | | River St. Laurence.|

|Nipissins | .... | 400 | | Towards the heads |

|Algonquins | .... | 300 | | Towards the heads |

|Round Heads | .... | 2,500 | | Riviere aux Tetes |

|Messasagues | .... | 2,000 | | Lakes Huron and |

|Christianaux--Kris | .... | 3,000 | | Lake Christianaux. |

|Assinaboes | .... | 1,500 | | Lake Assinaboes. |

|Blancs, or Barbus | .... | 1,500 | | |

|Sioux of the Meadows }| | 2,500 | |}On the heads of the|

|Sioux of the Woods }|10,000 | 1,800 | 10,000 |} Mississippi and |

|Sioux }| | .... | |} westward of that |

| | | | |} river. |

|Ajoues | .... | 1,100 | .... | North of the |

|Panis--White | .... | 2,000 | .... | South of the |

|Panis--Freckled | .... | 1,700 | .... | South of the |

|Padoucas | .... | 500 | .... | South of the |

|Grandes-Eaux | .... | 1,000 | .... | |

|Canses | .... | 1,600 | .... | South of the |

|Osages | .... | 600 | .... | South of the |

|Missouris | 400 | 3,000 | .... | On the river |

|Arkansas | .... | 2,000 | .... | On the river |

|Caouitas | .... | 700 | .... | East of the |

+----------------------+-------+--------+---------+--------------------+

+--------------+-------+-------+--------+-----+----------------------+

| | 1759. | 1764.| 1768. | 1779| |

+--------------+-------+-------+--------+-----+----------------------+

|Within the limits of the United States. |

| | | | | | |

|{Mohocks | ....} | .... | 160 | 100 |Mohocks river. |

|{Onèidas | ....} | .... | 300} | |East side of |

|{ | | | | | Oneida Lake and |

|{ | | | | 400 | head branches of |

|{ | | | | | Susquehanna. |

|{Tuscoròras | ....} | .... | 200} | |Between the Oneidas |

|{ | } | | | | and Onondagoes. |

|{Onondàgoes | ....} | 1,550 | 260 | 230 |Near Onondago Lake. |

|{Cayùgas | ....} | .... | 200 | 220 |On the Cayuga Lake, |

|{ | } | | | | near the north |

|{ | } | | | | branch of |

|{Senecas | ....} | .... | 1,000 | 650 |On the waters |

|Aughquàgahs | .... | .... | 150 | ....|East branch of |

|Nànticoes | .... | .... | 100 | ....|Utsanango, |

|Mohiccons | .... | .... | 100 | ....|In the same parts. |

|Conòies | .... | .... | 30 | ....|In the same parts. |

| | | | | | |

|Sapòonies | .... | .... | 30 | ....|At Diahago and |

|Mùnsies | .... | .... | 150 |*150 |At Diahago and |

|Delawares, | .... | .... | 150} | |At Diahago and |

|or | | | } | | other villages up |

|Linnelinopies | | | } | | the north branch |

| | | | } | | of Susquehanna. |

|Delawares, | 600 | 600 | 600} |*500 |Between Ohio and |

|or | | | | | Lake Erie and the |

|Shàwanees | 500 | 400 | 300 | 300 |Sioto and the |

|Mingoes | .... | .... | .... | 60 |On a branch of |

|Mohiccons | .... | ....} | | *60 | Sioto. |

| | | } | | | |

|Cohunnewagos | .... | ....} | 300 | ....|Near Sandusky. |

| | | } | | | |

|Wyandots | 300} | 300} | } | 180 | |

| | } | | } | | |

|Wyandots | } | .... | 250} | |Near |

|Twightwees | 300 | .... | 250 | ....|Miami river |

|Miamis | .... | 350 | .... | 300 |Miami river, about |

|Ouiàtonons | 200 | 400 | 300 |*400 |On the banks of |

|Piànkishas | 300 | 250 | 300 |*400 |On the banks of |

|Shákirs | .... | .... | 200 | ....|On the banks of |

|Kaskaskias | .... | | 300 | ....|Near Kaskaskia. |

| | | | | | |

|Illinois | 400 | 600 | 300 | ....|Near Cahokia. |

|Piorias | .... | 800 | .... | ....|On the Illinois |

|Ponteòtamies | .... | 350 | 300 | 450 |Near Fort St. |

|Ottawas | .... }| .... | 550} |*300 |Near Fort St. Joseph's|

| | }| | } | | and Fort Detroit. |

|Chippawas | .... }| ....}| } | ....|On Saguinam bay of |

| | }| }| } | | Lake Huron. |

|Ottawas | .... }| ....}| 200} | ....|On Saguinam bay of |

| | }| }| } | | Lake Huron. |

|Chippawas | .... }| .... | 400} | ....|Near Michillimackinac.|

|Ottawas | 2,000}| 5,900 | 250} |5,450|Near Michillimackinac.|

|Chippawas | .... }| | 400} | ....|Near Fort St. Mary's |

| | } | } | | on Lake Superior. |

| | }| | } | |Several other villages|

|Chippawas | .... }| .... | ....} | ....| along the banks of |

| | }| | } | | Lake Superior. |

| | } | } | | Numbers unknown. |

|Chippawas | .... }| }| ....} | ....|Near Puans bay on |

| | }| }| } | | Lake Michigan. |

|Shakies | 200 | 400}| 550 | ....|Near Puans bay on |

| | | } | | Lake Michigan. |

|Mynonàmies | .... | ....}| .... | ....|Near Puans bay on |

| | | }| | | Lake Michigan. |

|Ouisconsings | .... | 550 | .... | ....|Ouisconsing river. |

|Kickapous | 600 | 300}| .... | 250}| |

|Otogamies--Foxes| ....| ....}| .... |... }| |

|Màscoutens | .... | 500}| 4,000 |... }|On Lake Michigan, and |

| | | }| | }| between that and |

| | | }| | }| the Mississippi. |

|Miscòthins | .... | ....}| |... }| |

|Outimacs | .... | ....}| .... |... }| |

|Musquakies | 200 | 250}| .... | 250}| |

| | | | | | |

|Sioux. Eastern| .... | .... | .... | 500 |On the eastern heads |

| | | +--------+ | |

| | | | 1678. | | |

| | | +--------+ | |

|Cherokees | 1,500 | 2,500 | 3,000 | ....|Western parts of North|

|Chickasaws | .... | 750 | 500 | ....|Western parts of |

|Catawbas | .... | 150 | .... | ....|On the Catawba river |

|Chacktaws | 2,000 | 4,500 | 6,000 | ....|Western parts of |

|Upper Creeks | .... | ....}| | ....|{Western parts of |

|Lower Creeks | .... | 1,180}| 3,000 | ....|{ Georgia. |

|Natchez | .... | 150 | .... | ....| |

|Alibamous | .... | 600 | .... | ....|Alabama river, in the |

+--------------+-------+-------+--------+-----+----------------------+

The following tribes are also mentioned:

Croghan's Catal.

Lezar 400 From the mouth of Ohios to the mouth of Wabash.

Webings 200 On the Mississippi below the Shakies.

Ousasoys }

Grand Tuc} 4,000 On the White Creek, a branch of the Mississippi.

Linways 1,000 On the Mississippi.

Bouquet's.

Les Puans 700 Near Puans Bay.

Folle Avoine 350 Near Puans Bay.

Ouanakina 300 }

Chiakanessou 350 } Conjectured to be tribes of the Creeks.

Machecous 800 }

Souikilas 200 }

Dodge's.

Minneamis 2,000 } North-west of Lake Michigan, to the

} heads of Mississippi, and up to Lake

} Superior.

Piankishas, }

Mascoutins, } 800 } On and near the Wabash toward the Illinois.

Vermillions,}

But apprehending these might be different appellations for

some of the tribes already enumerated, I have not inserted them

in the table, but state them separately as worthy of further inquiry.

The variations observable in numbering the same tribe

may sometimes be ascribed to imperfect information, and sometimes

to a greater or less comprehension of settlements under the

same name. (7.)

FOOTNOTES:

[46] Smith.

[47] Evans.

[48] The os sacrum.

QUERY XII.

_A notice of the counties, cities, townships, and villages?_

The counties have been enumerated under Query IX. They

are seventy-four in number, of very unequal size and population.

Of these thirty-five are on the tide waters, or in that parallel;

twenty-three are in the midlands, between the tide waters and

Blue Ridge of mountains; eight between the Blue Ridge and

Alleghany; and eight westward of the Alleghany.

The State, by another division, is formed into parishes, many

of which are commensurate with the counties; but sometimes a

county comprehends more than one parish, and sometimes a

parish more than one county. This division had relation to the

religion of the State, a portion of the Anglican church, with a

fixed salary, having been heretofore established in each parish.

The care of the poor was another object of the parochial division.

We have no townships. Our country being much intersected

with navigable waters, and trade brought generally to our doors,

instead of our being obliged to go in quest of it, has probably been

one of the causes why we have no towns of any consequence.

Williamsburg, which, till the year 1780, was the seat of our

government, never contained above 1,800 inhabitants; and Norfolk,

the most populous town we ever had, contained but 6,000.

Our towns, but more properly our villages and hamlets, are as

follows:

On _James River_ and its waters, Norfolk, Portsmouth, Hampton,

Suffolk, Smithfield, Williamsburg, Petersburg, Richmond,

the seat of our government, Manchester, Charlottesville, New

London.

On _York River_ and its waters, York, Newcastle, Hanover.

On _Rappahannock_, Urbanna, Port-Royal, Fredericksburg, Falmouth.

On _Potomac_ and its waters, Dumfries, Colchester, Alexandria,

Winchester, Staunton.

On _Ohio_, Louisville.

There are other places at which, like some of the foregoing,

the _laws_ have said there shall be towns; but _nature_ has said

there shall not, and they remain unworthy of enumeration. _Norfolk_

will probably be the emporium for all the trade of the

Chesapeake bay and its waters; and a canal of eight or ten

miles will bring to it all that of Albemarle sound and its waters.

Secondary to this place, are the towns at the head of the tide

waters, to wit, Petersburg on Appomattox; Richmond on James

river; Newcastle on York river; Alexandria on Potomac, and

Baltimore on Patapsco. From these the distribution will be to

subordinate situations in the country. Accidental circumstances,

however, may control the indications of nature, and in no instance

do they do it more frequently than in the rise and fall of

towns.

QUERY XIII.

_The constitution of the State and its several charters?_

Queen Elizabeth by her letters patent, bearing date March 25,

1584, licensed Sir Walter Raleigh to search for remote heathen

lands, not inhabited by Christian people, and granted to him in

fee simple, all the soil within two hundred leagues of the places

where his people should, within six years, make their dwellings

or abidings; reserving only to herself and her successors, their

allegiance and one-fifth part of all the gold and silver ore they

should obtain. Sir Walter immediately sent out two ships, which

visited Wococon island in North Carolina, and the next year despatched

seven with one hundred and seven men, who settled in

Roanoke island, about latitude 35° 50'. Here Okisko, king of the

Weopomeiocs, in a full council of his people is said to have acknowledged

himself the homager of the Queen of England,

and, after her, of Sir Walter Raleigh. A supply of fifty men

were sent in 1586, and one hundred and fifty in 1587. With

these last Sir Walter sent a governor, appointed him twelve

assistants, gave them a charter of incorporation, and instructed

them to settle on Chesapeake bay. They landed, however, at

Hatorask. In 1588, when a fleet was ready to sail with a new

supply of colonists and necessaries, they were detained by the

Queen to assist against the Spanish armada. Sir Walter having

now expended £40,000 in these enterprises, obstructed occasionally

by the crown without a shilling of aid from it, was under

a necessity of engaging others to adventure their money.

He, therefore, by deed bearing date the 7th of March, 1589, by

the name of Sir Walter Raleigh, Chief Governor of Assamàcomòc,

(probably Acomàc,) alias Wingadacoia, alias Virginia, granted

to Thomas Smith and others, in consideration of their adventuring

certain sums of money, liberty to trade to this new

country free from all customs and taxes for seven years, excepting

the fifth part of the gold and silver ore to be obtained; and

stipulated with them and the other assistants, then in Virginia,

that he would confirm the deed of incorporation which he had

given in 1587, with all the prerogatives, jurisdictions, royalties

and privileges granted to him by the Queen. Sir Walter, at different

times, sent five other adventurers hither, the last of which

was in 1602; for in 1603 he was attainted and put into close

imprisonment, which put an end to his cares over his infant

colony. What was the particular fate of the colonists he had

before sent and seated, has never been known; whether they

were murdered, or incorporated with the savages.

Some gentlemen and merchants, supposing that by the attainder

of Sir Walter Raleigh the grant to him was forfeited, not

inquiring 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 Jamestown, and ever after

maintained. Of this grant, however, no particular notice need

be taken, as it was superceded 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 two hundred miles, and from the same point along the

sea-coast to the southward two hundred miles, and all the space

from this precinct on the sea-coast up into the land, west and

north-west, from sea to sea, and the islands within one hundred

miles of it, with all the communities, jurisdictions, royalties,

privileges, franchises, and pre-eminencies, 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 counsel 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 merchandise on importations

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 thirteen 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

three hundred 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 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 one hundred thousand pounds 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 partisans 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 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 and concluded at James Cittie in Virginia

for the surrendering and settling of that plantation under

the obedience and government of the commonwealth of England

by the commissioners of the Councill of State by authoritie

of the parliamt of England, and by the Grand assembly of the

Governour, Councill, and Burgesses of that countrey.

"First it is agreed and consted that the plantation of Virginia,

and all the inhabitants thereof, shall be and remain in due

obedience and subjection to the Commonwealth of England,

according to the laws 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 and enjoy such freedoms and priviledges

as belong to the free borne people of England, and that the

former government by the Commissions and Instructions be void

and null.

"2ly. That the Grand assembly as formerly shall convene and

transact the affairs of Virginia, wherein nothing is to be

acted or done contrairie to the government of the Commonwealth

of England and the lawes there established.

"3ly. That there shall be a full and 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 and enjoy the 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 the rights thereof.

"5ly. That all the pattents of land granted under the colony

seal by any of the precedent governours shall be and remaine

in their full force and strength.

"6ly. That the priviledge of haveing ffiftie acres of land

for every person transported in that collonie shall continue

as formerly granted.

"7ly. That the people of Virginia have free trade as the people

of England do enjoy to all places and with all nations according

to the lawes of that commonwealth, and that Virginia shall

enjoy all priviledges equall with any English plantations in

America.

"8ly. That Virginia shall be free from all taxes, customs and

impositions whatsoever, and none to be imposed on them without

consent of the Grand assembly; and soe that neither fforts

nor castle 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

the 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 and their estates out of Virginia, and in

the meantime during the said yeare to have equall justice as

formerly.

"11ly. That the use of the booke of common prayer shall be

permitted for one yeare ensueinge with referrence to the consent

of the major part of the parishes, provided that those 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 the

companies, unless such as have been entrusted with them or

have disposed of them without order.

"13ly. That all ammunition, powder and armes, other than for

private use, shall be delivered up, securitie being given to

make satisfaction for it.

"14ly. That all goods allreadie brought hither by the 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 the commissioners for the parliament subscribeing

these articles engage themselves and the honour of parliament

for the full performance thereof; and that the present

governour, and the councill, and the burgesses do likewise

subscribe and engage the whole collony on their parts.

RICHARD BENNETT.--Seale.

WILLIAM CLAIBORNE.--Seale.

EDMOND CURTIS.--Seale.

"Theise articles were signed and 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 wee the

commissioners appointed by the councill of state authorized

thereto, having brought a ffleet and force before James cittie

in Virginia to reduce that collonie under the obedience of

the commonwealth of England, and finding force raised by the

Governour and countrey to make opposition against the said

ffleet, whereby assured danger appearinge of the ruine and

destruction of the plantation, for prevention whereof the

burgesses of all the severall plantations being called to advise

and assist therein, uppon long and serious debate, and in sad

contemplation of the great miseries and certain destruction

which were soe neerely hovering over the whole countrey; Wee

the said Commissioners have thought fitt and condescending and

granted to signe and confirme under our hands, seales and by

our oath, Articles bearinge date with theise presents, and do

further declare that by the authoritie of the parliament and

commonwealth of England derived unto us their commissioners,

that according to the articles in generall wee have granted

an act of indempnitie and oblivion to all the inhabitants

of this collonie 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 we have done that all

the inhabitants of the collonie may live quietly and securely

under the commonwealth of England. And we do promise that the

parliament and commonwealth of England shall confirm and make

good all those transactions of ours. Witness our hands and

seales this 12th of March 1651.

RICHARD BENNETT.--Seale.

WILLIAM CLAIBORNE.--Seale.

EDMOND CURTIS.--Seale.

The colony supposed, that, by this solemn convention, entered

into with arms in their hands, they had secured the ancient

limits[49] of their country, its free trade,[50] its exemption from taxation[51]

but by their own assembly, and exclusion of military force[52]

from among them. Yet in every of these points was this convention

violated by subsequent kings and parliaments, and other

infractions of their constitution, equally dangerous committed.

Their general assembly, which was composed of the council of

state and burgesses, sitting together and deciding by plurality

of voices, was split into two houses, by which the council obtained

a separate negative on their laws. Appeals from their

supreme court, which had been fixed by law in their general assembly,

were arbitrarily revoked to England, to be there heard

before the king and council. Instead of four hundred miles on

the seacoast, they were reduced, in the space of thirty years, to

about one hundred miles. Their trade with foreigners was totally

suppressed, and when carried to Great Britain, was there

loaded with imposts. It is unnecessary, however, to glean up

the several instances of injury, as scattered through American

and British history, and the more especially as, by passing on to

the accession of the present king, we shall find specimens of

them all, aggravated, multiplied and crowded within a small

compass of time, so as to evince a fixed design of considering

our rights natural, conventional and chartered as mere nullities.

The following is an epitome of the first sixteen years of his

reign: The colonies were taxed internally and externally; their

essential interests sacrificed to individuals in Great Britain; their

legislatures suspended; charters annulled; trials by juries taken

away; their persons subjected to transportation across the Atlantic,

and to trial before foreign judicatories; their supplications

for redress thought beneath answer; themselves published as

cowards in the councils of their mother country and courts of

Europe; armed troops sent among them to enforce submission

to these violences; and actual hostilities commenced against

them. No alternative was presented but resistance, or unconditional

submission. Between these could be no hesitation.

They closed in the appeal to arms. They declared themselves

independent states. They confederated together into one great

republic; thus securing to every State the benefit of an union

of their whole force. In each State separately a new form of

government was established. Of ours particularly the following

are the outlines: The executive powers are lodged in the hands

of a governor, chosen annually, and incapable of acting more

then three years in seven. He is assisted by a council of eight

members. The judiciary powers are divided among several

courts, as will be hereafter explained. Legislation is exercised

by two houses of assembly, the one called the house of Delegates,

composed of two members from each county, chosen annually

by the citizens, possessing an estate for life in one hundred

acres of uninhabited land, or twenty-five acres with a house

on it, or in a house or lot in some town: the other called the

Senate, consisting of twenty-four members, chosen quadrenially

by the same electors, who for this purpose are distributed into

twenty-four districts. The concurrence of both houses is necessary

to the passage of a law. They have the appointment of the

governor and council, the judges of the superior courts, auditors,

attorney-general, treasurer, register of the land office, and delegates

to Congress. As the dismemberment of the State had

never had its confirmation, but, on the contrary, had always

been the subject of protestation and complaint, that it might

never be in our own power to raise scruples on that subject, or to

disturb the harmony of our new confederacy, the grants to Maryland,

Pennsylvania, and the two Carolinas, were ratified.

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 one thousand seven hundred and

forty-six. So that every man in Warwick has as much influence

in the government as seventeen 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 show the proportions of land, of fighting men, and of representation

in each:

Between the sea-coast and Square Fighting Delegates. Senators.

falls of the rivers miles. men.

[53]11,205 19,012 71 12

Between the falls of the

rivers and Blue Ridge 18,759 18,828 46 8

of mountains

Between the Blue Ridge

and the Alleghany 11,911 7,673 16 2

Between the Alleghany [54]79,650 4,458 16 2

and Ohio ----------- --------- ----- ----

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 homogenous 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 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 are 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 a 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 of 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:

5. That the ordinary legislature may alter the constitution itself.

On the discontinuance of assemblies, it became necessary

to substitute in their place some other body, competent to the

ordinary business of government, and to the calling forth the

powers of the State for the maintenance of our opposition to

Great Britain. Conventions were therefore introduced, consisting

of two delegates from each county, meeting together and

forming one house, on the plan of the former house of burgesses,

to whose places they succeeded. These were at first chosen

anew for every particular session. But in March 1775, they

recommended to the people to choose a convention, which should

continue in office a year. This was done, accordingly, in April

1775, and in the July following that convention passed an ordinance

for the election of delegates in the month of April annually.

It is well known, that in July 1775, a separation from

Great Britain and establishment of republican government, had

never yet entered into any person's mind. A convention, therefore,

chosen under that ordinance, cannot be said to have been

chosen for the purposes which certainly did not exist in the

minds of those who passed it. Under this ordinance, at the

annual election in April 1776, a convention for the year was

chosen. Independence, and the establishment of a new form of

government, were not even yet the objects of the people at large.

One extract from the pamphlet called Common Sense had appeared

in the Virginia papers in February, and copies of the

pamphlet itself had got in a few hands. But the idea had

not been opened to the mass of the people in April, much less

can it be said that they had made up their minds in its favor.

So that the electors of April 1776, no more than the legislators

of July 1775, not thinking of independence and a permanent

republic, could not mean to vest in these delegates powers

of establishing them, or any authorities other than those of the

ordinary legislature. So far as a temporary organization of

government was necessary to render our opposition energetic, so

far their organization was valid. But they received in their creation

no power but what were given to every legislature before

and since. They could not, therefore, pass an act transcendent

to the powers of other legislatures. If the present assembly

pass an act, and declare it shall be irrevocable by subsequent assemblies,

the declaration is merely void, and the act repealable,

as other acts are. So far, and no farther authorized, they organized

the government by the ordinance entitled a constitution

or form of government. It pretends to no higher authority than

the other ordinances of the same session; it does not say that it

shall be perpetual; that it shall be unalterable by other legislatures;

that it shall be transcendent above the powers of those

who they knew would have equal power with themselves. Not

only the silence of the instrument is a proof they thought it

would be alterable, but their own practice also; for this very

convention, meeting as a house of delegates in general assembly

with the Senate in the autumn of that year, passed acts of assembly

in contradiction to their ordinance of government; and

every assembly from that time to this has done the same. I am

safe, therefore, in the position that the constitution itself is alterable

by the ordinary legislature. Though this opinion seems founded

on the first elements of common sense, yet is the contrary maintained

by some persons. 1. Because, say they, the conventions

were vested with every power necessary to make effectual opposition

to Great Britain. But to complete this argument, they

must go on, and say further, that effectual opposition could not

be made to Great Britain without establishing a form of government

perpetual and unalterable by the legislature; which is not

true. An opposition which at some time or other was to come

to an end, could not need a perpetual institution to carry it on;

and a government amendable as its defects should be discovered,

was as likely to make effectual resistance, as one that should be

unalterably wrong. Besides, the assemblies were as much vested

with all powers requisite for resistance as the conventions were.

If, therefore, these powers included that of modelling the form

of government in the one case, they did so in the other. The

assemblies then as well as the conventions may model the government;

that is, they may alter the ordinance of government.

2. They urge, that if the convention had meant that this instrument

should be alterable, as their other ordinances were, they

would have called it an ordinance; but they have called it a

_constitution_, which, ex vi termini, means "an act above the power

of the ordinary legislature." I answer that _constitutio_, _constitutium_,

_statutum_, _lex_, are convertible terms. "_Constitutio_ dicitur

jus quod a principe conditure." "_Constitutium_, quod ab imperatoribus

rescriptum statutumve est." "_Statutum_, idem quod

lex." Calvini Lexicon juridicum. _Constitution_ and _statute_

were originally terms of the[55] civil law, and from thence introduced

by ecclesiastics into the English law. Thus in the statute

25 Hen. VIII. c. 19, §. 1, "_Constitutions_ and _ordinances_" are

used as synonymous. The term _constitution_ has many other

significations in physics and politics; but in jurisprudence, whenever

it is applied to any act of the legislature, it invariably means

a statute, law, or ordinance, which is the present case. No inference

then of a different meaning can be drawn from the

adoption of this title; on the contrary, we might conclude that,

by their affixing to it a term synonymous with ordinance or

statute. But of what consequence is their meaning, where their

power is denied? If they meant to do more than they had power

to do, did this give them power? It is not the name, but the

authority that renders an act obligatory. Lord Coke says, "an

article of the statute, 11 R. II. c. 5, that no person should attempt

to revoke any ordinance then made, is repealed, for that

such restraint is against the jurisdiction and power of the parliament."

4. Inst. 42. And again, "though divers parliaments have

attempted to restrain subsequent parliaments, yet could they

never effect it; for the latter parliament hath ever power to abrogate,

suspend, qualify, explain, or make void the former in the

whole or in any part thereof, notwithstanding any words of restraint,

prohibition, or penalty, in the former; for it is a maxim

in the laws of the parliament, quod leges posteriores priores contrarias

abrogant." 4. Inst. 43. To get rid of the magic supposed

to be in the word _constitution_, let us translate it into its

definition as given by those who think it above the power of the

law; and let us suppose the convention, instead of saying, "We

the ordinary legislature, establish a _constitution_," had said, "We

the ordinary legislature, establish an act _above the power of the

ordinary legislature_." Does not this expose the absurdity of

the attempt? 3. But, say they, the people have acquiesced, and

this has given it an authority superior to the laws. It is true

that the people did not rebel against it; and was that a time for

the people to rise in rebellion? Should a prudent acquiescence,

at a critical time, be construed into a confirmation of every illegal

thing done during that period? Besides, why should they

rebel? At an annual election they had chosen delegates for the

year, to exercise the ordinary powers of legislation, and to manage

the great contest in which they were engaged. These delegates

thought the contest would be best managed by an organized

government. They therefore, among others, passed an ordinance

of government. They did not presume to call it perpetual and

unalterable. They well knew they had no power to make it

so; that our choice of them had been for no such purpose, and

at a time when we could have no such purpose in contemplation.

Had an unalterable form of government been meditated, perhaps

we should have chosen a different set of people. There was no

cause then for the people to rise in rebellion. But to what dangerous

lengths will this argument lead? Did the acquiescence

of the colonies under the various acts of power exercised by

Great Britain in our infant State, confirm these acts, and so far

invest them with the authority of the people as to render them

unalterable, and our present resistance wrong? On every unauthoritative

exercise of power by the legislature must the people

rise in rebellion, or their silence be construed into a surrender

of that power to them? If so, how many rebellions should

we have had already? One certainly for every session of assembly.

The other States in the union have been of opinion

that to render a form of government unalterable by ordinary acts

of assembly, the people must delegate persons with special powers.

They have accordingly chosen special conventions to form

and fix their governments. The individuals then who maintain

the contrary opinion in this country, should have the modesty to

suppose it possible that they may be wrong, and the rest of

America right. But if there be only a possibility of their being

wrong, if only a plausible doubt remains of the validity of the

ordinance of government, is it not better to remove that doubt by

placing it on a bottom which none will dispute? If they be

right we shall only have the unnecessary trouble of meeting once

in convention. If they be wrong, they expose us to the hazard

of having no fundamental rights at all. True it is, this is no

time for deliberating on forms of government. While an enemy

is within our bowels, the first object is to expel him. But when

this shall be done, when peace shall be established, and leisure

given us for intrenching within good forms, the rights for which

we have bled, let no man be found indolent enough to decline a

little more trouble for placing them beyond the reach of question.

If anything more be requisite to produce a conviction of the expediency

of calling a convention at a proper season to fix our

form of government, let it be the reflection:

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[56] common law as well as common right.

It is the[57] natural law of every assembly of men, whose numbers

are not fixed by any other law. 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[58] lately 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 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.

In enumerating the defects of the constitution, it would be

wrong to count among them what is only the error of particular

persons. In December 1776, our circumstances being much distressed,

it was proposed in the house of delegates to create a _dictator_,

invested with every power legislative, executive, and

judiciary, civil and military, of life and of death, over our persons

and over our properties; and in June 1781, again under

calamity, the same proposition was repeated, and wanted a few

votes only of being passed. One who entered into this contest

from a pure love of liberty, and a sense of injured rights, who

determined to make every sacrifice, and to meet every danger, for

the re-establishment of those rights on a firm basis, who did not

mean to expend his blood and substance for the wretched purpose

of changing this matter for that, but to place the powers of

governing him in a plurality of hands of his own choice, so that

the corrupt will of no one man might in future oppress him,

must stand confounded and dismayed when he is told, that a

considerable portion of that plurality had mediated the surrender

of them into a single hand, and, in lieu of a limited monarchy,

to deliver him over to a despotic one! How must we find his

efforts and sacrifices abused and baffled, if he may still, by a

single vote, be laid prostrate at the feet of one man! In God's

name, from whence have they derived this power? Is it from

our ancient laws? None such can be produced. Is it from any

principle in our new constitution expressed or implied? Every

lineament expressed or implied, is in full opposition to it. Its

fundamental principle is, that the State shall be governed as a

commonwealth. It provides a republican organization, proscribes

under the name of _prerogative_ the exercise of all powers

undefined by the laws; places on this basis the whole system of

our laws; and by consolidating them together, chooses that they

should be left to stand or fall together, never providing for any

circumstances, nor admitting that such could arise, wherein

either should be suspended; no, not for a moment. Our ancient

laws expressly declare, that those who are but delegates themselves

shall not delegate to others powers which require judgment

and integrity in their exercise. Or was this proposition

moved on a supposed right in the movers, of abandoning their

posts in a moment of distress? The same laws forbid the abandonment

of that post, even on ordinary occasions; and much

more a transfer of their powers into other hands and other forms,

without consulting the people. They never admit the idea that

these, like sheep or cattle, may be given from hand to hand without

an appeal to their own will. Was it from the necessity of

the case? Necessities which dissolve a government, do not convey

its authority to an oligarchy or a monarchy. They throw

back, into the hands of the people, the powers they had delegated,

and leave them as individuals to shift for themselves. A

leader may offer, but not impose himself, nor be imposed on them.

Much less can their necks be submitted to his sword, their breath

to be held at his will or caprice. The necessity which should

operate these tremendous effects should at least be palpable and

irresistible. Yet in both instances, where it was feared, or pretended

with us, it was belied by the event. It was belied, too,

by the preceding experience of our sister States, several of whom

had grappled through greater difficulties without abandoning

their forms of government. When the proposition was first

made, Massachusetts had found even the government of committees

sufficient to carry them through an invasion. But we at

the time of that proposition, were under no invasion. When the

second was made, there had been added to this example those

of Rhode Island, New York, New Jersey, and Pennsylvania, in

all of which the republican form had been found equal to the

task of carrying them through the severest trials. In this State

alone did there exist so little virtue, that fear was to be fixed in

the hearts of the people, and to become the motive of their exertions,

and principle of their government? The very thought

alone was treason against the people; was treason against mankind

in general; as rivetting forever the chains which bow down

their necks, by giving to their oppressors a proof, which they

would have trumpeted through the universe, of the imbecility of

republican government, in times of pressing danger, to shield

them from harm. Those who assume the right of giving away

the reins of government in any case, must be sure that the herd,

whom they hand on to the rods and hatchet of the dictator, will

lay their necks on the block when he shall nod to them. But if

our assemblies supposed such a recognition in the people, I hope

they mistook their character. I am of opinion, that the government,

instead of being braced and invigorated for greater exertions

under their difficulties, would have been thrown back upon

the bungling machinery of county committees for administration,

till a convention could have been called, and its wheels again

set into regular motion. What a cruel moment was this for creating

such an embarrassment, for putting to the proof the attachment

of our countrymen to republican government! Those who

meant well, of the advocates of this measure, (and most of them

meant well, for I know them personally, had been their fellow-laborer

in the common cause, and had often proved the purity

of their principles,) had been seduced in their judgment by the

example of an ancient republic, whose constitution and circumstances

were fundamentally different. They had sought this

precedent in the history of Rome, where alone it was to be

found, and where at length, too, it had proved fatal. They had

taken it from a republic rent by the most bitter factions and tumults,

where the government was of a heavy-handed unfeeling

aristocracy, over a people ferocious, and rendered desperate by

poverty and wretchedness; tumults which could not be allayed

under the most trying circumstances, but by the omnipotent

hand of a single despot. Their constitution, therefore, allowed

a temporary tyrant to be erected, under the name of a dictator;

and that temporary tyrant, after a few examples, became perpetual.

They misapplied this precedent to a people mild in their

dispositions, patient under their trial, united for the public liberty,

and affectionate to their leaders. But if from the constitution of

the Roman government there resulted to their senate a power of

submitting all their rights to the will of one man, does it follow

that the assembly of Virginia have the same authority? What

clause in our constitution has substituted that of Rome, by way

of residuary provision, for all cases not otherwise provided for?

Or if they may step _ad libitum_ into any other form of government

for precedents to rule us by, for what oppression may not

a precedent be found in this world of the _ballum omnium in

omnia_? Searching for the foundations of this proposition, I can

find none which may pretend a color of right or reason, but the

defect before developed, that there being no barrier between the

legislative, executive, and judiciary departments, the legislature

may seize the whole; that having seized it, and possessing a right

to fix their own quorum, they may reduce that quorum to one,

whom they may call a chairman, speaker, dictator, or by any

other name they please. Our situation is indeed perilous, and I

hope my countrymen will be sensible of it, and will apply, at a

proper season, the proper remedy; which is a convention to fix

the constitution, to amend its defects, to bind up the several

branches of government by certain laws, which, when they transgress,

their acts shall become nullities; to render unnecessary an

appeal to the people, or in other words a rebellion, on every infraction

of their rights, on the peril that their acquiescence shall

be construed into an intention to surrender those rights.

FOOTNOTES:

[49] Art. 4.

[50] Art. 7.

[51] Art. 8.

[52] Art. 8.

[53] Of these 542 are on the eastern shore.

[54] Of these, 22,616 are eastward of the meridian of the north

of the Great Kanhaway.

[55] To bid, to set, was the ancient legislative word of the

English. Ll. Hlotharri and Eadrici. Ll. Inæ. Ll. Eadwerdi.

Ll. Aathelstani.

[56] Bro. abr. Corporations, 31, 34. Hakewell, 93.

[57] Puff. Off. hom. l. 2, c. 6, §. 12.

[58] June 4, 1781.

QUERY XIV.

_The administration of justice and the description of the laws?_

The State is divided into counties. In every county are appointed

magistrates, called justices of the peace, usually from

eight to thirty or forty in number, in proportion to the size of

the county, of the most discreet and honest inhabitants. They

are nominated by their fellows, but commissioned by the governor,

and act without reward. These magistrates have jurisdiction

both criminal and civil. If the question before them be a

question of law only, they decide on it themselves; but if it be

of fact, or of fact and law combined, it must be referred to a

jury. In the latter case, of a combination of law and fact, it is

usual for the jurors to decide the fact, and to refer the law arising

on it to the decision of the judges. But this division of the

subject lies with their discretion only. And if the question relate

to any point of public liberty, or if it be one of those in

which the judges may be suspected of bias, the jury undertake

to decide both law and fact. If they be mistaken, a decision

against right, which is casual only, is less dangerous to the State,

and less afflicting to the loser, than one which makes part of a

regular and uniform system. In truth, it is better to toss up cross

and pile in a cause, than to refer it to a judge whose mind is

warped by any motive whatever, in that particular case. But

the common sense of twelve honest men gives still a better

chance of just decision, than the hazard of cross and pile. These

judges execute their process by the sheriff or coroner of the

county, or by constables of their own appointment. If any free

person commit an offence against the commonwealth, if it be

below the degree of felony, he is bound by a justice to appear

before their court, to answer it on an indictment or information.

If it amount to felony, he is committed to jail; a court of these

justices is called; if they on examination think him guilty, they

send him to the jail of the general court, before which court he

is to be tried first by a grand jury of twenty-four, of whom

thirteen must concur in opinion; if they find him guilty, he is

then tried by a jury of twelve men of the county where the offence

was committed, and by their verdict, which must be unanimous,

he is acquitted or condemned without appeal. If the

criminal be a slave, the trial by the county court is final. In

every case, however, except that of high treason, there resides

in the governor a power of pardon. In high treason the pardon

can only flow from the general assembly. In civil matters these

justices have jurisdiction in all cases of whatever value, not appertaining

to the department of the admiralty. This jurisdiction

is twofold. If the matter in dispute be of less value than four

dollars and one-sixth, a single member may try it at any time

and place within his county, and may award execution on the

goods of the party cast. If it be of that or greater value, it is

determinable before the county court, which consists of four at

the least of those justices and assembles at the court-house of

the county on a certain day in every month. From their determination,

if the matter be of the value of ten pounds sterling, or

concern the title or bounds of lands, an appeal lies to one of the

superior courts.

There are three or four superior courts, to wit, the high court

of chancery, the general court, and the court of admiralty. The

first and second of these receive appeals from the county courts,

and also have original jurisdiction, where the subject of controversy

is of the value of ten pounds sterling, or where it concerns

the title or bounds of lands. The jurisdiction of the admiralty

is original altogether. The high court of chancery is composed

of three judges, the general court of five, and the court of admiralty

of three. The two first hold their sessions at Richmond

at stated times, the chancery twice in the year, and the general

court twice for business civil and criminal, and twice more for

criminal only. The court of admiralty sits at Williamsburg

whenever a controversy arises.

There is one supreme court, called the court of appeals, composed

of the judges of the three superior courts, assembling

twice a year at stated times at Richmond. This court receives

appeals in all civil cases from each of the superior courts, and

determines them finally. But it has no original jurisdiction.

If a controversy arise between two foreigners of a nation in

alliance with the United States, it is decided by the Consul for

their State, or, if both parties choose it, by the ordinary courts

of justice. If one of the parties only be such a foreigner, it is

triable before the courts of justice of the country. But if it

shall have been instituted in a county court, the foreigner may

remove it into the general court, or court of chancery, who are

to determine it at their first sessions, as they must also do if it

be originally commenced before them. In cases of life and

death, such foreigners have a right to be tried by a jury, the one-half

foreigners, the other natives.

All public accounts are settled with a board of auditors, consisting

of three members appointed by the general assembly, any

two of whom may act. But an individual, dissatisfied with the

determination of that board, may carry his case into the proper

superior court.

A description of the laws.

The general assembly was constituted, as has been already

shown, by letters-patent of March the 9th, 1607, in the fourth

year of the reign of James the first. The laws of England

seem to have been adopted by consent of the settlers, which

might easily enough be done whilst they were few and living

all together. Of such adoption, however, we have no other

proof than their practice till the year 1661, when they were expressly

adopted by an act of the assembly, except so far as "a

difference of condition" rendered them inapplicable. Under this

adoption, the rule, in our courts of judicature was, that the common

law of England, and the general statutes previous to the

fourth of James, were in force here; but that no subsequent

statutes were, _unless we were named in them_, said the judges

and other partisans of the crown, but _named or not named_, said

those who reflected freely. It will be unnecessary to attempt a

description of the laws of England, as that may be found in

English publications. To those which were established here,

by the adoption of the legislature, have been since added a number

of acts of assembly passed during the monarchy, and ordinances

of convention and acts of assembly enacted since the establishment

of the republic. The following variations from the

British model are perhaps worthy of being specified:

Debtors unable to pay their debts, and making faithful delivery

of their whole effects, are released from confinement, and

their persons forever discharged from restraint for such previous

debts; but any property they may afterwards acquire will be

subject to their creditors.

The poor unable to support themselves, are maintained by an

assessment on the tytheable persons in their parish. This assessment

is levied and administered by twelve persons in each parish,

called vestrymen, originally chosen by the housekeepers of the

parish, but afterwards filling vacancies in their own body by

their own choice. These are usually the most discreet farmers,

so distributed through their parish, that every part of it may be

under the immediate eye of some one of them. They are well

acquainted with the details and economy of private life, and

they find sufficient inducements to execute their charge well, in

their philanthropy, in the approbation of their neighbors, and the

distinction which that gives them. The poor who have neither

property, friends, nor strength to labor, are boarded in the houses

of good farmers, to whom a stipulated sum is annually paid. To

those who are able to help themselves a little, or have friends

from whom they derive some succors, inadequate however to

their full maintenance, supplementary aids are given which enable

them to live comfortably in their own houses, or in the

houses of their friends. Vagabonds without visible property or

vocation, are placed in work houses, where they are well clothed,

fed, lodged, and made to labor. Nearly the same method of

providing for the poor prevails through all our States; and from

Savannah to Portsmouth you will seldom meet a beggar. In

the large towns, indeed, they sometimes present themselves.

These are usually foreigners, who have never obtained a settlement

in any parish. I never yet saw a native American begging

in the streets or highways. A subsistence is easily gained here;

and if, by misfortunes, they are thrown on the charities of the

world, those provided by their own country are so comfortable

and so certain, that they never think of relinquishing them to become

strolling beggars. Their situation too, when sick, in the

family of a good farmer, where every member is emulous to do

them kind offices, where they are visited by all the neighbors,

who bring them the little rarities which their sickly appetites

may crave, and who take by rotation the nightly watch over

them, when their condition requires it, is without comparison

better than in a general hospital, where the sick, the dying and

the dead are crammed together in the same rooms, and often in

the same beds. The disadvantages, inseparable from general

hospitals, are such as can never be counterpoised by all the regularities

of medicine and regimen. Nature and kind nursing save

a much greater proportion in our plain way, at a smaller expense,

and with less abuse. One branch only of hospital institution is

wanting with us; that is, a general establishment for those laboring

under difficult cases of chirurgery. The aids of this art are

not equivocal. But an able chirurgeon cannot be had in every

parish. Such a receptacle should therefore be provided for those

patients; but no others should be admitted.

Marriages must be solemnized either on special license, granted

by the first magistrate of the county, on proof of the consent

of the parent or guardian of either party under age, or after

solemn publication, on three several Sundays, at some place of

religious worship, in the parishes where the parties reside. The

act of solemnization may be by the minister of any society of

Christians, who shall have been previously licensed for this purpose

by the court of the county. Quakers and Menonists, however,

are exempted from all these conditions, and marriage among

them is to be solemnized by the society itself.

A foreigner of any nation, not in open war with us, becomes

naturalized by removing to the State to reside, and taking an

oath of fidelity; and thereupon acquires every right of a native

citizen; and citizens may divest themselves of that character,

by declaring, by solemn deed, or in open court, that they mean

to expatriate themselves, and no longer to be citizens of this State.

Conveyances of land must be registered in the court of the

county wherein they lie, or in the general court, or they are void,

as to creditors, and subsequent purchasers.

Slaves pass by descent and dower as lands do. Where the

descent is from a parent, the heir is bound to pay an equal

share of their value in money to each of their brothers and sisters.

Slaves, as well as lands, were entailable during the monarchy;

but, by an act of the first republican assembly, all donees in tail,

present and future, were vested with the absolute dominion of

the entailed subject.

Bills of exchange, being protested, carry ten per cent. interest

from their date.

No person is allowed, in any other case, to take more than

five per cent. per annum simple interest for the loan of moneys.

Gaming debts are made void, and moneys actually paid to

discharge such debts (if they exceed forty shillings) may be recovered

by the payer within three months, or by any other person

afterwards.

Tobacco, flour, beef, pork, tar, pitch, and turpentine, must be

inspected by persons publicly appointed, before they can be exported.

The erecting iron-works and mills is encouraged by many

privileges; with necessary cautions however to prevent their

dams from obstructing the navigation of the water-courses. The

general assembly have on several occasions shown a great desire

to encourage the opening the great falls of James and Potomac

rivers. As yet, however, neither of these have been effected.

The laws have also descended to the preservation and improvement

of the races of useful animals, such as horses, cattle,

deer; to the extirpation of those which are noxious, as wolves,

squirrels, crows, blackbirds; and to the guarding our citizens

against infectious disorders, by obliging suspected vessels coming

into the State, to perform quarantine, and by regulating the conduct

of persons having such disorders within the State.

The mode of acquiring lands, in the earliest times of our settlement,

was by petition to the general assembly. If the lands

prayed for were already cleared of the Indian title, and the assembly

thought the prayer reasonable, they passed the property

by their vote to the petitioner. But if they had not yet been

ceded by the Indians, it was necessary that the petitioner should

previously purchase their right. This purchase the assembly

verified, by inquiries of the Indian proprietors; and being satisfied

of its reality and fairness, proceeded further to examine the

reasonableness of the petition, and its consistence with policy;

and according to the result, either granted or rejected the petition.

The company also sometimes, though very rarely, granted

lands, independently of the general assembly. As the colony

increased, and individual applications for land multiplied, it was

found to give too much occupation to the general assembly to

inquire into and execute the grant in every special case. They

therefore thought it better to establish general rules, according to

which all grants should be made, and to leave to the governor

the execution of them, under these rules. This they did by

what have been usually called the land laws, amending them

from time to time, as their defects were developed. According

to these laws, when an individual wished a portion of unappropriated

land, he was to locate and survey it by a public officer,

appointed for that purpose; its breadth was to bear a certain proportion

to its length: the grant was to be executed by the governor;

and the lands were to be improved in a certain manner,

within a given time. From these regulations there resulted to

the State a sole and exclusive power of taking conveyances of

the Indian right of soil; since, according to them an Indian conveyance

alone could give no right to an individual, which the

laws would acknowledge. The State, or the crown, thereafter,

made general purchases of the Indians from time to time, and

the governor parcelled them out by special grants, conformable

to the rules before described, which it was not in his power, or

in that of the crown, to dispense with. Grants, unaccompanied

by their proper legal circumstances, were set aside regularly by

_fiere facias_, or by bill in chancery. Since the establishment

of our new government, this order of things is but little changed.

An individual, wishing to appropriate to himself lands still unappropriated

by any other, pays to the public treasurer a sum of

money proportioned to the quantity he wants. He carries the

treasurer's receipt to the auditors of public accounts, who thereupon

debit the treasurer with the sum, and order the register of

the land-office to give the party a warrant for his land. With

this warrant from the register, he goes to the surveyor of the

county where the land lies on which he has cast his eye. The

surveyor lays it off for him, gives him its exact description, in

the form of a certificate, which certificate he returns to the land

office, where a grant is made out, and is signed by the governor.

This vests in him a perfect dominion in his lands, transmissible

to whom he pleases by deed or will, or by descent to his heirs,

if he die intestate.

Many of the laws which were in force during the monarchy

being relative merely to that form of government, or inculcating

principles inconsistent with republicanism, the first assembly

which met after the establishment of the commonwealth appointed

a committee to revise the whole code, to reduce it into

proper form and volume, and report it to the assembly. This

work has been executed by three gentlemen, and reported; but

probably will not be taken up till a restoration of peace shall

leave to the legislature leisure to go through such a work.

The plan of the revisal was this. The common law of England,

by which is meant, that part of the English law which

was anterior to the date of the oldest statutes extant, is made the

basis of the work. It was thought dangerous to attempt to reduce

it to a text; it was therefore left to be collected from the

usual monuments of it. Necessary alterations in that, and so

much of the whole body of the British statutes, and of acts of

assembly, as were thought proper to be retained, were digested

into one hundred and twenty-six new acts, in which simplicity

of style was aimed at, as far as was safe. The following are the

most remarkable alterations proposed:

To change the rules of descent, so as that the lands of any

person dying intestate shall be divisible equally among all his

children, or other representatives, in equal degree.

To make slaves distributable among the next of kin, as other

movables.

To have all public expenses, whether of the general treasury,

or of a parish or county, (as for the maintenance of the poor,

building bridges, court-houses, &c.,) supplied by assessment on

the citizens, in proportion to their property.

To hire undertakers for keeping the public roads in repair,

and indemnify individuals through whose lands new roads shall

be opened.

To define with precision the rules whereby aliens should become

citizens, and citizens make themselves aliens.

To establish religious freedom on the broadest bottom.

To emancipate all slaves born after passing the act. The

bill reported by the revisers does not itself contain this proposition;

but an amendment containing it was prepared, to be

offered to the legislature whenever the bill should be taken

up, and farther directing, that they should continue with their

parents to a certain age, then to be brought up, at the public expense,

to tillage, arts, or sciences, according to their geniuses, till

the females should be eighteen, and the males twenty-one years

of age, when they should be colonized to such place as the circumstances

of the time should render most proper, sending them

out with arms, implements of household and of the handicraft

arts, seeds, pairs of the useful domestic animals, &c., to declare

them a free and independent people, and extend to them our alliance

and protection, till they have acquired strength; and to

send vessels at the same time to other parts of the world for an

equal number of white inhabitants; to induce them to migrate

hither, proper encouragements were to be proposed. It will probably

be asked, Why not retain and incorporate the blacks into

the State, and thus save the expense of supplying by importation

of white settlers, the vacancies they will leave? Deep-rooted

prejudices entertained by the whites; ten thousand recollections,

by the blacks, of the injuries they have sustained; new provocations;

the real distinctions which nature has made; and many

other circumstances, will divide us into parties, and produce convulsions,

which will probably never end but in the extermination

of the one or the other race. To these objections, which are

political, may be added others, which are physical and moral.

The first difference which strikes us is that of color. Whether

the black of the negro resides in the reticular membrane between

the skin and scarf-skin, or in the scarf-skin itself; whether it

proceeds from the color of the blood, the color of the bile, or

from that of some other secretion, the difference is fixed in nature,

and is as real as if its seat and cause were better known to

us. And is this difference of no importance? Is it not the

foundation of a greater or less share of beauty in the two races?

Are not the fine mixtures of red and white, the expressions of

every passion by greater or less suffusions of color in the one,

preferable to that eternal monotony, which reigns in the countenances,

that immovable veil of black which covers the emotions

of the other race? Add to these, flowing hair, a more elegant

symmetry of form, their own judgment in favor of the whites,

declared by their preference of them, as uniformly as is the preference

of the Oranootan for the black woman over those of his

own species. The circumstance of superior beauty, is thought

worthy attention in the propagation of our horses, dogs, and

other domestic animals; why not in that of man? Besides those

of color, figure, and hair, there are other physical distinctions

proving a difference of race. They have less hair on the face

and body. They secrete less by the kidneys, and more by the

glands of the skin, which gives them a very strong and disagreeable

odor. This greater degree of transpiration, renders them

more tolerant of heat, and less so of cold than the whites. Perhaps,

too, a difference of structure in the pulminary apparatus,

which a late ingenious[59] experimentalist has discovered to be the

principal regulator of animal heat, may have disabled them from

extricating, in the act of inspiration, so much of that fluid from

the outer air, or obliged them in expiration, to part with more of

it. They seem to require less sleep. A black after hard labor

through the day, will be induced by the slightest amusements

to sit up till midnight, or later, though knowing he must be out

with the first dawn of the morning. They are at least as brave,

and more adventuresome. But this may perhaps proceed from a

want of forethought, which prevents their seeing a danger till it

be present. When present, they do not go through it with more

coolness or steadiness than the whites. They are more ardent

after their female; but love seems with them to be more an eager

desire, than a tender delicate mixture of sentiment and sensation.

Their griefs are transient. Those numberless afflictions, which

render it doubtful whether heaven has given life to us in mercy

or in wrath, are less felt, and sooner forgotten with them. In

general, their existence appears to participate more of sensation

than reflection. To this must be ascribed their disposition to

sleep when abstracted from their diversions, and unemployed in

labor. An animal whose body is at rest, and who does not reflect,

must be disposed to sleep of course. Comparing them

by their faculties of memory, reason, and imagination, it appears

to me that in memory they are equal to the whites; in reason

much inferior, as I think one could scarcely be found capable of

tracing and comprehending the investigations of Euclid; and

that in imagination they are dull, tasteless, and anomalous. It

would be unfair to follow them to Africa for this investigation.

We will consider them here, on the same stage with the whites,

and where the facts are not apochryphal on which a judgment

is to be formed. It will be right to make great allowances for

the difference of condition, of education, of conversation, of the

sphere in which they move. Many millions of them have been

brought to, and born in America. Most of them, indeed, have

been confined to tillage, to their own homes, and their own society;

yet many have been so situated, that they might have

availed themselves of the conversation of their masters; many

have been brought up to the handicraft arts, and from that circumstance

have always been associated with the whites. Some

have been liberally educated, and all have lived in countries

where the arts and sciences are cultivated to a considerable degree,

and all have had before their eyes samples of the best

works from abroad. The Indians, with no advantages of this

kind, will often carve figures on their pipes not destitute of design

and merit. They will crayon out an animal, a plant, or a

country, so as to prove the existence of a germ in their minds

which only wants cultivation. They astonish you with strokes

of the most sublime oratory; such as prove their reason and sentiment

strong, their imagination glowing and elevated. But

never yet could I find that a black had uttered a thought above

the level of plain narration; never saw even an elementary trait

of painting or sculpture. In music they are more generally gifted

than the whites with accurate ears for tune and time, and they

have been found capable of imagining a small catch.[60] Whether

they will be equal to the composition of a more extensive run

of melody, or of complicated harmony, is yet to be proved.

Misery is often the parent of the most affecting touches in

poetry. Among the blacks is misery enough, God knows, but

no poetry. Love is the peculiar œstrum of the poet. Their

love is ardent, but it kindles the senses only, not the imagination.

Religion, indeed, has produced a Phyllis Whately; but it

could not produce a poet. The compositions published under

her name are below the dignity of criticism. The heroes of

the Dunciad are to her, as Hercules to the author of that

poem. Ignatius Sancho has approached nearer to merit in composition;

yet his letters do more honor to the heart than the

head. They breathe the purest effusions of friendship and

general philanthropy, and show how great a degree of the latter

may be compounded with strong religious zeal. He is often

happy in the turn of his compliments, and his style is easy and

familiar, except when he affects a Shandean fabrication of words.

But his imagination is wild and extravagant, escapes incessantly

from every restraint of reason and taste, and, in the course of

its vagaries, leaves a tract of thought as incoherent and eccentric,

as is the course of a meteor through the sky. His subjects

should often have led him to a process of sober reasoning; yet

we find him always substituting sentiment for demonstration.

Upon the whole, though we admit him to the first place among

those of his own color who have presented themselves to the

public judgment, yet when we compare him with the writers of

the race among whom he lived and particularly with the epistolary

class in which he has taken his own stand, we are compelled

to enrol him at the bottom of the column. This criticism supposes

the letters published under his name to be genuine, and to

have received amendment from no other hand; points which

would not be of easy investigation. The improvement of the

blacks in body and mind, in the first instance of their mixture

with the whites, has been observed by every one, and proves

that their inferiority is not the effect merely of their condition

of life. We know that among the Romans, about the Augustan

age especially, the condition of their slaves was much more deplorable

than that of the blacks on the continent of America. The

two sexes were confined in separate apartments, because to raise a

child cost the master more than to buy one. Cato, for a very restricted

indulgence to his slaves in this particular[61], took from them

a certain price. But in this country the slaves multiply as fast as

the free inhabitants. Their situation and manners place the

commerce between the two sexes almost without restraint. The

same Cato, on a principle of economy, always sold his sick and

superannuated slaves. He gives it as a standing precept to a

master visiting his farm, to sell his old oxen, old wagons, old

tools, old and diseased servants, and everything else become useless.

"Vendat boves vetulos, plaustrum vetus, feramenta vetera,

servum senem, servum morbosum, et si quid aliud supersit vendat."

Cato de re rusticâ, c. 2. The American slaves cannot

enumerate this among the injuries and insults they receive. It

was the common practice to expose in the island Æsculapius, in

the Tyber, diseased slaves whose cure was like to become

tedious.[62] The emperor Claudius, by an edict, gave freedom to

such of them as should recover, and first declared that if any

person chose to kill rather than to expose them, it should not be

deemed homicide. The exposing them is a crime of which no

instance has existed with us; and were it to be followed by

death, it would be punished capitally. We are told of a certain

Vedius Pollio, who, in the presence of Augustus, would have

given a slave as food to his fish, for having broken a glass. With

the Romans, the regular method of taking the evidence of their

slaves was under torture. Here it has been thought better never

to resort to their evidence. When a master was murdered, all

his slaves, in the same house, or within hearing, were condemned

to death. Here punishment falls on the guilty only,

and as precise proof is required against him as against a freeman.

Yet notwithstanding these and other discouraging circumstances

among the Romans, their slaves were often their rarest artists.

They excelled too in science, insomuch as to be usually employed

as tutors to their master's children. Epictetus, Terence,

and Phædrus, were slaves. But they were of the race of whites.

It is not their condition then, but nature, which has produced the

distinction. Whether further observation will or will not verify

the conjecture, that nature has been less bountiful to them in

the endowments of the head, I believe that in those of the heart

she will be found to have done them justice. That disposition

to theft with which they have been branded, must be ascribed

to their situation, and not to any depravity of the moral sense.

The man in whose favor no laws of property exist, probably

feels himself less bound to respect those made in favor of others.

When arguing for ourselves, we lay it down as a fundamental,

that laws, to be just, must give a reciprocation of right; that,

without this, they are mere arbitrary rules of conduct, founded

in force, and not in conscience; and it is a problem which I

give to the master to solve, whether the religious precepts against

the violation of property were not framed for him as well as his

slave? And whether the slave may not as justifiably take a

little from one who has taken all from him, as he may slay one

who would slay him? That a change in the relations in which

a man is placed should change his ideas of moral right or wrong,

is neither new, nor peculiar to the color of the blacks. Homer

tells us it was so two thousand six hundred years ago.

'Emisu, ger t' aretes apoainutai euruopa Zeus

Haneros, eut' an min kata doulion ema elesin.

Odd. 17, 323.

Jove fix'd it certain, that whatever day

Makes man a slave, takes half his worth away.

But the slaves of which Homer speaks were whites. Notwithstanding

these considerations which must weaken their respect

for the laws of property, we find among them numerous

instances of the most rigid integrity, and as many as among

their better instructed masters, of benevolence, gratitude, and unshaken

fidelity. The opinion that they are inferior in the faculties

of reason and imagination, must be hazarded with great

diffidence. To justify a general conclusion, requires many observations,

even where the subject may be submitted to the anatomical

knife, to optical glasses, to analysis by fire or by solvents.

How much more then where it is a faculty, not a substance, we

are examining; where it eludes the research of all the senses;

where the conditions of its existence are various and variously

combined; where the effects of those which are present or absent

bid defiance to calculation; let me add too, as a circumstance

of great tenderness, where our conclusion would degrade

a whole race of men from the rank in the scale of beings which

their Creator may perhaps have given them. To our reproach it

must be said, that though for a century and a half we have had

under our eyes the races of black and of red men, they have

never yet been viewed by us as subjects of natural history. I

advance it, therefore, as a suspicion only, that the blacks, whether

originally a distinct race, or made distinct by time and circumstances,

are inferior to the whites in the endowments both

of body and mind. It is not against experience to suppose that

different species of the same genus, or varieties of the same species,

may possess different qualifications. Will not a lover of

natural history then, one who views the gradations in all the

races of animals with the eye of philosophy, excuse an effort to

keep those in the department of man as distinct as nature has

formed them? This unfortunate difference of color, and perhaps

of faculty, is a powerful obstacle to the emancipation of

these people. Many of their advocates, while they wish to vindicate

the liberty of human nature, are anxious also to preserve

its dignity and beauty. Some of these, embarrassed by the question,

"What further is to be done with them?" join themselves

in opposition with those who are actuated by sordid avarice only.

Among the Romans emancipation required but one effort. The

slave, when made free, might mix with, without staining the

blood of his master. But with us a second is necessary, unknown

to history. When freed, he is to be removed beyond the

reach of mixture.

The revised code further proposes to proportion crimes and

punishments. This is attempted on the following scale:

I. Crimes whose punishment extends to LIFE.

1. High treason. Death by hanging.

Forfeiture of lands and goods to the

commonwealth.

2. Petty treason. Death by hanging. Dissection.

Forfeiture of half the lands and goods to the

representatives of the party slain.

3. Murder. 1. By poison. Death by poison.

Forfeiture of one-half, as before.

2. In duel. Death by hanging. Gibbeting, if the

challenger.

Forfeiture of one-half as before, unless

it be the party challenged, then the

forfeiture is to the commonwealth.

3. In any other way. Death by hanging.

Forfeiture of one-half as before.

4. Manslaughter. The second offence is murder.

II. Crimes whose punishment goes to LIMB.

1. Rape. } Dismemberment.

2. Sodomy. }

3. Maiming. } Retaliation, and the forfeiture of half of the

4. Disfiguring. } lands and goods to the sufferer.

III. Crimes punishable by LABOR.

1. Manslaughter, Labor VII. years Forfeiture of half, as

1st offence. for the in murder.

public.

2. Counterfeiting Labor VI. years Forfeiture of lands and

money. "" goods to the commonwealth.

3. Arson. } Labor V. years Reparation three-fold.

4. Asportation of } ""

vessels.

5. Robbery. } Labor IV. years Reparation double.

6. Burglary. } ""

7. House-breaking. } Labor III. years Reparation.

8. Horse-stealing. } ""

9. Grand larceny. Labor II. years Reparation. Pillory.

10. Petty larceny. Labor I. year Reparation. Pillory.

11. Pretensions to

witchcraft, &c. Ducking. Stripes.

12. Excusable homicide. }

13. Suicide. } To be pitied, not punished.

14. Apostasy. Heresy. }

Pardon and privilege of clergy are proposed to be abolished;

but if the verdict be against the defendant, the court in their

discretion may allow a new trial. No attainder to cause a corruption

of blood, or forfeiture of dower. Slaves guilty of offences

punishable in others by labor, to be transported to Africa,

or elsewhere, as the circumstances of the time admit, there to

be continued in slavery. A rigorous regimen proposed for those

condemned to labor.

The Writings of Thomas Jefferson, Vol. 8 (of 9) Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private · 第 3 / 8 章

The _Monacans_ and their friends, better known latterly by the