I. Petition to the Virginia House of Delegates
[on or before 3 Aug. 1797]
To the Speaker and House of Delegates of the Commonwealth of Virginia
The Petition of the subscribers, inhabitants of the counties of Amherst, Albemarle, Fluvanna and Goochland sheweth
That by the constitution of this state, established from it’s earliest settlement, the people thereof have possessed the right of being governed by laws to which they have consented by representatives chosen by themselves immediately:1 that in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognisance or coercion of it’s co-ordinate branches Judiciary and Executive; and that their communications with their constituents should of right, as of duty also, be free, full,2 and unawed by any:3 that so necessary has this intercourse been deemed in the country from which they derive their descent and laws, that the communications between the Representative and Constituent are privileged there to pass free of expence through the channel of the public post, and that the proceedings of the legislature have been known to be arrested and suspended at times until the Representatives could go home to their several counties and confer with their constituents.
That when, at the epoch of Independance, the constitution was formed under which we are now governed as a commonwealth, so highly were the principles of representative government esteemed, that the legislature was made to consist of two branches, both of them chosen immediately by the citizens; and that general system of laws was continued which protected the relations between the representative and constituent, and guarded the functions of the former from the controul of the Judiciary and Executive branches:4
That when circumstances required that [the] antient confederation of this with the sister states, for the government of their common concerns,5 should be improved into a more regular and effective form of general government, the same representative principle was preserved in the new legislature, one branch of which was to be chosen directly by the citizens of each state,6 and the laws and principles remained unaltered which privilege the representative functions, whether to be exercised in the state or general government, against the cognisance and notice of the co-ordinate branches Executive and Judiciary; and for it’s safe and convenient exercise, the intercommunication of the representative and constituent has been sanctioned and provided for through the channel of the public post, at the public expence:
That at the General partition of this commonwealth into districts, each of which were to chuse a representative to Congress, the counties of Amherst, Albemarle, Fluvanna and Goochland were laid off into one district: that at the elections held for the said district in the month of April in the years 1795. and 1797. the electors thereof made choice of Samuel Jordan Cabell of the county of Amherst to be their representative in the legislature of the General government:7 that the said Samuel Jordan Cabell accepted the said office, repaired at the due periods to the legislature of the General government, exercised his functions there as became a worthy member, and as a good and dutiful representative was in the habit of corresponding with many of8 his constituents, and of communicating to us by way of letter information of the public proceedings of asking and recieving our9 opinions and advice, and of contributing as [far as depend]ed on him,10 to preserve the transactions of the General government in [unison] with the principles and sentiments of his constituents: that while the said Saml. J. Cabell was in the exercise of his functions as a representative from this district, and was in the course of that correspondence which his duty and the will of his constituents imposed on him, the right of thus communicating with them, deemed sacred under all the forms in which [our government had] hitherto existed, never questioned or11 infringed even by Royal judges or [governors, was] most dangerously and12 [injuri]ously violated at a Circuit court of the General Government held at the city of Richmond for the district of Virginia in the month of of this present year 1797:13 that at the said court A.B. &c. having been called upon to serve in the office of Grand jurors before the said court, were sworn to the duties of the said office in the usual forms of the law, the known limits of which duties are to make presentment of14 those acts of individuals which the laws have declared to be crimes or misdemeanors: that departing out of the legal limits of their said office, and availing themselves of the sanction of it’s cover, wickedly and contrary to their fidelity to destroy the rights of the people of this commonwealth, and the fundamental principles of representative government, they made a presentment of the act of the said Saml. J. Cabell in writing letters to his constituents in the following words, to wit, [here insert the presentment.]15
That the Grand jury is a part of the Judiciary, not permanent indeed, but in office16 pro hac vice, and responsible as other judges are for their actings and doings while in office: that for the Judiciary to interpose in the legislative department between the Constituent and his Representative, to controul them in the exercise of their functions or duties towards each other, to overawe the free correspondence which exists and ought to exist between them, to dictate what communication may pass between them,17 and to punish all others, to put the Representative18 into jeopardy of criminal prosecution, of vexation, expence, and punishment before the Judiciary, if his communications public or private do not exactly square with their ideas of fact or right, or with their19 designs of wrong, is to put the legislative department under the feet of the Judiciary, is to leave us indeed the shadow, but to take away the substance of representation, which requires essentially that the Representative be as free as his Constituents would be, that the same interchange of sentiment be lawful between him and them as would be among themselves were they in the personal transaction of their own business; is to do away20 the [influence of the] people over the proceedings [of their] representatives by excluding from their knolege [through fear] of punishment, all but [such] information or misinformation as may suit their own views; and is the more vitally dangerous when it is considered that Grand jurors are selected by officers appointed and holding their places at the will of the Executive, that they are exposed to influence from the judges who are appointed immediately by the Executive, and who, altho’ holding permanently21 their commissions as judges, yet from the career of additional office and emolument actually opened to them of late, whether constitutionally or not, are under all those motives,22 which interest or ambition inspire, of courting the favor of that branch from which appointments flow;23 that Grand juries are frequently composed in part of bystanders, often foreigners, of foreign attachments and interests and little knolege of the laws they are most improperly called to decide on,24 of which description were some of the Grand jury in question; and finally is to give to the Judiciary, and through them to the Executive a compleat preponderance over the legislature,25 rendering ineffectual that wise and cautious26 distribution of powers made by the constitution between the three branches, and subordinating to the other two that branch27 which most immediately depends on the people themselves, and is responsible to them at short periods.
Your petitioners further observe that tho’ this crime may not be specifically defined and denominated by any particular statute, yet it is a crime, and of the highest and most alarming nature: that the Constitution of this Commonwealth, aware it would sometimes28 happen that deep and dangerous crimes, pronounced [as such in] the heart of every friend to his country and it’s free constitution,29 would often escape the definitions of the law, and yet ought not to escape it’s punishments, fearing at the same time to entrust such undescribed offences to the discretion of ordinary juries and judges, has reserved the same to the cognisance of the body of the Commonwealth acting by their representatives in General assembly, for which purpose provision is made by the constitution in the following words, to wit, ‘the Governor, when he is out of office, and others offending against the state, either by mal-administration, corruption, or other means by which the safety [of the state may be endangered], shall be impeachable by the House of Delegates. Such impeachment to be prosecuted by the Attorney General or such other person or persons as the house may appoint in the General court, according to the laws of the land. If found guilty, he or they shall be either for ever disabled to hold any office under government, or removed from such offices pro tempore, or subjected to such pains or penalties as the law shall direct.’
Considering then the House of Delegates as the standing Inquest of the whole Commonwealth so established by the Constitution, that it’s jurisdiction as such extends over all persons within it’s limits, and that no pale, no sanctuary has been erected against their jurisdiction to protect offenders who have committed crimes against the laws of the Commonwealth within the same, that the crime committed by the said Grand jurors is of that high and extraordinary character for which the constitution has provided extraordinary procedure, that tho’ the violation of right falls in the first instance on us your petitioners and the representative chosen immediately by us, yet in principle and consequence it extends to all our fellow citizens, whose safety is passed away whenever their representatives are placed, in the exercise of their functions, under the direction and coercion of either of the other departments of government: We your petitioners therefore pray that you will be pleased to take your constitutional cognisance of the premises and institute such proceedings for impeaching and punishing the said A.B. &c.30 as may protect in future the Representatives of this Commonwealth in the exercise of their functions freely and independantly of the other departments of government, may guard that full intercourse between them and their constituents which the nature of their relations and the laws of the land establish, and may serve as a terror to others attempting31 hereafter to subvert the fundamental principles of our constitution, to exclude the people from all direct influence over the government they have established by [reducing that] branch of the legislature which they chuse directly, to a subordination [under those branches] over whom they have but an indirect, distant and feeble controul.
And your petitioners further submit to the wisdom of the two houses of General assembly whether the safety of the citizens of this commonwealth in their persons, their property, their laws and government does not require that the capacity to act in the important office of a juror, grand or petty, civil or criminal, should be restrained in future (the single case of the medietas linguae excepted) to native citizens of the US. or such as resided within the American lines during the whole of the late revolutionary war, and whether the ignorance of our laws and natural partiality to the countries of their birth are not reasonable causes for declaring this to be one of the rights incommunicable to adoptive citizens.
We therefore your petitioners, relying with entire confidence on the wisdom and patriotism of our representatives in General assembly, cloathed preeminently with all the powers of the people which have not been32 reserved to themselves, or expressly given to the General government, and stationed as centinels to observe with watchfulness and oppose with firmness33 all movements tending to destroy the equilibrium of our excellent but complicated machine of government, invoke from you that redress of our violated rights which the freedom and safety of our common country calls for, and we, as in duty bound, shall ever pray &c.
PrC (DLC: TJ Papers, 232: 42022-7); undated; badly faded, with words in brackets supplied from Dft, except where noted (see note 15 below). Dft (same, 232: 42014–17); undated; with minor variations in punctuation, abbreviations, and wording, one being noted below (see note 16); with numerous emendations, only the most important of which are noted below. Enclosed in TJ to Madison, 3 Aug. 1797.
1. In Dft TJ first wrote “laws made by a legislature one branch <thereof> of which that was chosen by the said inhabitants themselves directly” before altering the passage to read as above.
2. In Dft TJ interlined the preceding nine words in place of “be free, uncontrouled and [in] frequent.”
3. In Dft TJ here canceled “other power, that information might be carried home to the [breast] of every citizen, and opportunity be thus given him to express to his representative his individual sense of measures, to have that influence on his judgment to which they were entitled.”
4. In Dft TJ first wrote “made a sacred […] fundamental and important part, the rights duties and functions of each remained unimpaired and their correspondence privileged and kept sacred against the cognisance and […] of the other coordinate branches” before altering the preceding clause to read as above.
5. In Dft TJ first wrote “circumstances rendered it eligible for the happiness of our own and our sister states, that the confederation which had been formed in the earlier […] moments of our revolution” before altering the preceding passage to read as above.
6. In Dft TJ first wrote the passage from this point to “general government” as: “[and the] relations duties, rights privileges and functions between the representatives and constituent remained the same and the laws and principles on which they [rested] protecting [their] exercise of [their] functions and communication remained <the same and thus> unaltered and consequently privileged the [same and] sacred” before altering it to read as above.
7. In Dft TJ here and in the next clause interlined the preceding two words in place of “US.”
8. Preceding two words interlined in Dft.
9. In this passage and elsewhere in Dft TJ changed third person to first, altering “their” to “our,” “they” to “we,” and “them” to “us.”
10. Preceding three words interlined in Dft in place of “a single <vote> voice could do it.”
11. In Dft TJ first wrote “never violated or encroached or.”
12. Preceding two words interlined in Dft.
13. In Dft TJ here canceled “before James Iredell judge and Cyrus Griffin district judge, at which court John Blair &c.”
14. In Dft TJ here canceled “breaches those offenses public wrongs which.”
15. Brackets in original. Bracketed directive lacking in Dft.
16. In Dft TJ here interlined “occasional only and in office.”
17. Preceding three words interlined in Dft in place of “be made.”
18. In Dft TJ first wrote “individuals” before interlining “of the legislature” and then altering the phrase to read as above.
19. In Dft TJ here canceled “wicked.”
20. In Dft TJ wrote the passage from “is to leave” through “do away” in the margin in place of “is to poison free government in it’s purest source of representation, is to mislead and invalidate.”
21. Word interlined in Dft.
22. In Dft TJ here canceled “of subservience to the Executive.”
23. Preceding eleven words interlined in Dft in place of “and are no longer to be considered as impartial and […] between the Executive and people.”
24. Preceding three words interlined in Dft in place of “upon to execute.”
25. In Dft TJ inserted the remainder of the sentence in place of “and controul to the utter subversion of the constitution, and of the rights of the people.”
26. Word interlined in Dft in place of “<essential> happy.”
27. Proceding seven words interlined in place of “to the suppression of that.”
28. Word interlined in Dft in place of “often.”
29. Preceding seven words interlined in Dft in place of “[…] freedom and his country.”
30. Dft: “J. Blair &c.”
31. Remainder of paragraph inserted in Dft in place of alternate wording that also included reference to the “most precious rights of the people.”
32. TJ here canceled “specially” in Dft.
33. Preceding six words interlined in Dft.