Petition to Virginia House of Delegates
It is not clear when Jefferson decided to take it upon himself to respond to the grand jury presentment against Samuel J. Cabell (see TJ to Peregrine Fitzhugh, 4 June 1797), but he must have begun working on the draft of a petition to the Virginia House of Delegates soon after he returned to Monticello. Believing it was dangerous to let the attack on circular letters to constituents go unanswered, especially when Cabell represented Jefferson’s own district, Jefferson constructed a defense of the right of representatives to communicate freely with their constituents and the natural right of citizens to correspond freely with other citizens. In his letter to Madison of 3 Aug., in which he enclosed the first state of the petition (Document I below), Jefferson asserted that he would speak of it to no one until Madison advised him on the “expediency of the measure.” Jefferson encouraged him to respond quickly, however, indicating that he would show it to Peter Carr and Wilson Cary Nicholas at the 7 Aug. meeting of the Albemarle County Court if Madison approved of the document. Jefferson received Madison’s encouraging response of 5 Aug. on the court day. The revised state of the petition (Document II below), transcribed in Paul L. Ford’s ten-volume edition of Jefferson’s papers from a manuscript which has not been found, incorporated some of the changes suggested by Madison on 5 Aug., including the use of “nominated” instead of “appointed” when referring to “officers” and “judges” in the paragraph beginning “That the grand jury is a part of the Judiciary”; the revision of the limitation on grand jurors from “such as resided within the American lines during the whole of the late revolutionary war” to “such as were citizens at the date of the treaty of peace which closed our revolutionary war” in the second to the last paragraph; and the use of “enumerated in the grant” instead of “expressly given” in the final paragraph. The revised state also included an alteration alluded to in a query from Monroe in his letter to Jefferson of 5 Sep., as to whether the petition should be sent to Congress rather than the state legislature. Adding the paragraph beginning “That independently of these considerations,” Jefferson answered the question of jurisdiction by explaining that while the House of Representatives had the duty to uphold the rights of Cabell and its other members, the state had the responsibility to uphold the right of its citizens to freely correspond, a right which had not been alienated by the adoption of the United States Constitution. On 7 Sep. Jefferson wrote Monroe that the petition was not designed to punish “the breach of Mr. Cabell’s privilege” but to punish the “wrong done to the citizens of our district.”
The petition presented to the Virginia House of Delegates was probably in Monroe’s hand. He completed it by the end of October, following Jefferson’s instructions—given after he consulted with Madison and Nicholas—to omit the references to impeachment (Monroe to TJ, [27 Oct. 1797]). The paragraph that sought to restrict grand jurors to “native citizens of the United States” was also eliminated, fully incorporating the change urged by Madison in early August. Thus the final state of the petition as preserved in the Journal of the House of Delegates of the Commonwealth of Virginia left any measures to be taken against the jurors up to the state assembly (see notes to Document II below). Nicholas, one of the Albemarle County delegates, most likely brought the petition to Richmond where it was presented and read before the House of Delegates on 19 Dec. 1797. A committee of the whole House considered the petition on 26 and 27 Dec. and framed a resolution that was brought forward the following day. Describing the House of Delegates as the “grand inquest of the commonwealth” which had the right and duty “to oppose political error, or to call to account political criminality, by expressing an opinion, or presenting an impeachment,” the resolution stated that the grand jury presentment had endangered the safety of the state and diminished the rights of the people by “subjecting representatives to censure, expense, or punishment, for communicating with their constituents.” If the presentment were allowed to stand, constituents in the future would be ignorant of the conduct of their representatives, responsibility would be transferred from constituents to juries, the legislature would be dependent on the executive and judiciary, and free communication between citizen and citizen would be abolished. The House of Delegates therefore concluded that the presentment was a “violation of the fundamental principles of representation” because it subjected the “natural right of speaking and writing freely, to the censure and controul of Executive power” (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Dec. 1797-Jan. 1798, 40–1, 59–62; Leonard, General Assembly, 207).
Three attempts, all unsuccessful, were made to amend the resolution. The first called upon Virginia congressmen to support legislation limiting grand juries to presentments against offences covered by the laws of Congress. The second argued that the House of Representatives, not the Virginia House of Delegates, was responsible for protecting the rights of congressmen. The third was a defense of the grand jury system, a “sacred political institution,” against legislative and executive encroachments. The House went on to pass the original measure, 92-53, but adopted no punitive measures and failed to send it to the upper house for further action. The House agreed to insert the petition in its journal and have one thousand copies, along with the House actions concerning it, printed for distribution (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Dec. 1797-Jan. 1798, 61–4).
By using others to bring the petition forward, Jefferson attempted to keep his authorship quiet. He did not succeed. Federalist John Nicholas, Albemarle County clerk, learned of Jefferson’s role in the measure and criticized him for secretly writing the petition while vice president, thus ignoring the separation of powers (Nicholas to George Washington, 22 Feb. 1798, in Washington, Papers: Retir. Ser., ii, 101–2). John Taylor, however, may not have been aware of Jefferson’s role. While developing a political strategy for the meeting of the Assembly in 1798, he confided to Wilson Cary Nicholas on the ineffectiveness of resolutions and addresses brought forth by Republicans in previous years. “Even the masterly petition from your district,” he observed, “about the grand jury presentment was called a ‘party thing’ and forgotten” (Taylor to Nicholas, 27 Oct. 1798, in ViU). This did not deter Jefferson. In 1798 he drafted another petition for presentation to the Virginia Assembly by which he sought to abolish the court’s right to pick and exert power over the jurors (see petition enclosed in TJ to Madison, 26 Oct. 1798; Adrienne Koch and Harry Ammon, “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” in WMQ description begins William and Mary Quarterly, 1892– description ends , ser. 3, v , 153–4).