Thomas Jefferson Papers

Proposals to Revise the Virginia Constitution: I. Thomas Jefferson to “Henry Tompkinson” (Samuel Kercheval), 12 July 1816

I. Thomas Jefferson to “Henry Tompkinson” (Samuel Kercheval)

Monticello July 12. 16.


I duly recieved your favor of June 13. with a copy of the letters on the calling a Convention, on which you are pleased to ask my opinion. I have not been in the habit of mysterious reserve on any subject, nor of buttoning up my opinions within my own doublet. on the contrary, while in public service especially, I have thought the public entitled to frankness, and intimately to know whom they employed. but I am now retired: I resign myself, as a passenger, with confidence to those at the present helm, and ask but for rest, peace and good will. the question you propose, on equal representation, has become a party one, in which I wish to take no public share. yet, if it be asked for your own satisfaction only, and not to be quoted before the public, I have no motive to withold it, & the less from you, as it coincides with your own. at the birth of our republic, I committed that opinion to the world, in the draught of a Constitution annexed to the Notes on Virginia, in which a provision was inserted for a representation permanently equal. the infancy of the subject at that moment, and our inexperience of self-government occasioned gross departures, in that draught, from genuine republican canons. in truth, the abuses of monarchy had so much filled all the space of political contemplation that we imagined every thing republican which was not monarchy. we had not yet penetrated to the mother-principle that ‘governments are republican only in proportion as they embody the will of their people, and execute it.’ hence, our first constitutions had really no leading principle in them. but experience & reflection have but more & more confirmed me in the particular importance of the equal representation then proposed. on that point then I am entirely in sentiment with your letters; and only lament that a Copy-right of your pamphlet prevents their appearance in the newspapers, where alone they would be generally read, and produce general effect. the present vacancy too of other matter would give them place in every paper, and bring the question home to every man’s conscience.

But, inequality of representation, in both houses of our legislature is not the only republican heresy in this first essay of our revolutionary patriots at forming a constitution. for let it be agreed that a government is republican in proportion as every member composing it has his equal voice in the direction of it’s concerns, (not indeed in person, which would be impracticable beyond the limits of a city, or small township, but) by representatives chosen by himself, & responsible to him at short periods, and let us bring to the test of this Canon every branch of our constitution.

In the legislature, the House of Representatives is chosen by less than half the people, and not at all in proportion to those who do chuse. the Senate are still more disproportionate, and for long terms of irresponsibility.—In the Executive, the Governor is entirely independant of the choice of the people, & of their controul; his Council equally so, and at best but a fifth wheel to a waggon.—In the Judiciary, the judges of the highest courts are dependant on none but themselves. in England, where judges were named, & removable at the will of an hereditary Executive, from which branch most misrule was feared, and has flowed, it was a great point gained, by fixing them for life, to make them independant of that Executive. but in a government founded on the public will this principle operates in an opposite1 direction, & against that will. there too they were still removable on a concurrence of the Executive and legislative branches. but we have made them independant of the nation itself. they are irremovable but by their own body for any depravities of conduct, and even by their own body for the imbecilities of dotage.—the justices of the inferior courts are self-chosen, are for life, and perpetuate their own body in succession forever, so that a faction once possessing itself of the bench of a county can never be broken up, but hold their county in chains, forever indissoluble. yet these justices are the real Executive, as well as judiciary in all our minor and most ordinary concerns. they tax us at will; fill the office of sheriff, the most important of all the executive officers of the county, name nearly all our military leaders, which leaders, once named, are removable but by themselves.—The Juries, our judges of all fact, and of law when they chuse it, are not selected by the people, nor amenable to them. they are chosen by an officer named by the Court and Executive. chosen, did I say? picked up by the Sheriff from the loungings of the court yard, after every thing respectable has retired from it.—where then is our republicanism to be found? not in our constitution certainly, but merely in the spirit of our people. that would oblige even a despot to govern us republicanly. owing to this spirit, and to nothing in the form of our constitution, all things have gone well. but this fact, so triumphantly misquoted by the enemies of reformation, is not the fruit of our constitution, but has prevailed in spite of it. our functionaries have done well, because generally honest men. if any were not so, they feared to shew it.

But it will be said it is easier to find faults than to amend them. I do not think their amendment so difficult as is pretended. only lay down true principles, and adhere to them inflexibly. do not be frightened into their surrender by the alarms of the timid, or the croakings of wealth against the ascendancy of the people. if experience be called for, appeal to that of our 15. or 20. governments for 40. years, and shew me where the people have done half the mischief in these 40. years, that a single despot would have done in a single year; or shew2 half the riots and rebellions, the crimes & the punishments which have taken place in any single nation, under kingly government, during the same period. the true foundation of republican government3 is the equal right of every citizen in his person, & property, & in their management. try by this, as a tally, every provision of our constitution, and see if it hangs directly on the will of the people. reduce your legislature to a convenient number for full, but orderly discussion. let every man who fights or pays exercise his just and equal right in their election. submit them to approbation or rejection at short intervals.—let the Executive be chosen in the same way, & for the same term, by those whose agent he is to be; and leave no screen of a council, behind which to skulk from responsibility.—it has been thought that the people are not competent electors of judges learned in the law. but I do not know that this is true, and, if doubtful, we should follow principle. in this, as in many other elections, they would be guided by reputation, which would not err oftener perhaps than the present mode of appointment. in one state of the Union at least it has been long tried and with the most satisfactory success. the judges of Connecticut have been chosen by the people every 6 months for nearly two centuries, and I believe there has hardly ever been an instance of change; so powerful is the curb of incessant responsibility. if prejudice however, derived from a monarchical institution, is still to prevail against the vital elective principle of our own, and if the existing example among ourselves of periodical election of judges by the people be still mistrusted, let us at least not adopt the evil & reject the good of the English precedent; let us retain amovability on the concurrence of the Executive and legislative branches, and nomination by the Executive alone. nomination to office is an executive function. to give it to the legislature, as we do, is a violation of the principle of the separation of powers. it swerves the members from correctness by temptations to intrigue for office themselves, & to a corrupt barter of votes; and destroys responsibility by dividing it among a multitude. by leaving nomination in it’s proper place among executive functions the principle of the distribution of power is preserved, and responsibility weighs with it’s heaviest force on a single head.   The organisation of our county administrations may be thought more difficult. but follow principle, & the knot unties itself. divide the counties into Wards of such size as that every citizen can attend when called on, and act in person. ascribe to them the government of their wards in all things relating to themselves exclusively. a justice chosen by themselves, in each, a constable a military company, a patrole, a school, the care of their own poor, their own portion of the public roads, the choice of one or more jurors to serve in some court, & the delivery, within their own wards, of their own votes for all elective officers of higher sphere will relieve the county administration of nearly all it’s business, will have it better done, and by making every citizen an acting member of the government, & in the offices nearest & most interesting to him, will attach him by his strongest feelings to the independance of his country, and it’s republican constitution.   The justices thus chosen by every ward, would constitute the county court, would do it’s judiciary business, direct roads and bridges, levy county and poor-rates, and administer all the matters of common interest to the whole county. these Wards, called townships, in New England, are the vital principle of their governments, and have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government, and for it’s preservation.   We should thus marshal our government into 1. the General federal republic, for all concerns foreign & federal; 2. that of the State for what relates to our own citizens exclusively. 3. the County republics for the duties & concerns of the county, and 4. the Ward-republics, for the small, and yet numerous & interesting concerns of the neighborhood: and in government, as well as in every other business of life, it is by division and subdivision of duties alone, that all matters, great & small, can be managed to perfection. and the whole is cemented by giving to every citizen personally a part in the administration of the public affairs.

The sum of these amendments is 1. general suffrage. 2. equal representation in the legislature. 3. an Executive chosen by the people. 4. judges elective or amovable. 5. justices jurors, and sheriffs elective. 6. Ward-divisions. & 7. periodical amendment of the Constitution.

I have thrown out these, as loose heads of amendment, for consideration & correction: and their object is to secure self-government by the republicanism of our constitution, as well as by the spirit of the people; and it is to nourish and perpetuate that spirit. I am not among those who fear the people. they and not the rich, are our dependance for continued freedom. and, to preserve their independance, we must not let our rulers load us with perpetual debt. we must make our election between economy & liberty, or profusion and servitude. if we run into such debts as that we must be taxed in our meat and in our drink, in our necessaries & our comforts, in our labors & our amusements, for our callings and our creeds, as the people of England are, our people, like them, must come to labor 16. hours in the 24. give the earnings of 15. of these to the government for their debts and daily expences; and the 16th being insufficient to afford us bread, we must live, as they now do, on oatmeal & potatoes; have no time to think, no means of calling the mismanagers to account; but be glad to obtain subsistence by hiring ourselves to rivet their chains on the necks of our fellow sufferers. our land holders too, like theirs, retaining indeed the title and stewardship of estates called theirs, but held really in trust for the treasury, must wander, like theirs, in foreign countries, and be contented with penury, obscurity, exile, and the glory of the nation. this example reads to us the salutary lesson that private fortunes are destroyed by public, as well as by private extravagance. and this is the tendency of all human governments. a departure from principle in one instance becomes a precedent for a 2d that 2d for a 3d and so on, till the bulk of the society is reduced to be mere automatons of misery, to have no sensibilities left but for sinning and suffering. then begins indeed the bellum omnium in omnia, which some philosophers observing to be so general in this world, have mistaken it for the natural, instead of the abusive, state of man. and the forehorse of this frightful team is Public debt. taxation follows that, and in it’s train wretchedness and oppression.

Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of it’s country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because when once known, we accomodate ourselves to them, and find practical means of correcting their ill effects. but I know also that laws and institutions must go hand in hand with the progress of the human mind. as that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. we might as well require a man to wear still the coat which fitted him when a boy, as civilised society to remain ever under the regimen of their barbarous ancestors. it is this preposterous idea which has lately deluged Europe in blood. their monarchs, instead of wisely yielding to the gradual changes of circumstances, of favoring progressive accomodation to progressive improvement, have clung to old abuses, intrenched themselves behind steady habits, and obliged their subjects to seek, thro’ blood & violence, rash & ruinous innovations, which, had they been referred to the peaceful deliberations, & collected wisdom of the nation, would have been put into acceptable and salutary forms. let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering it’s own affairs. let us, as our sister-states have done, avail ourselves of our reason and experience to correct the crude essays of our first and unexperienced, altho’ wise, virtuous, & well meaning councils. And lastly, let us provide in our constitution for it’s revision at stated periods. what these periods should be Nature herself indicates. by the European tables of mortality, of the Adults living at any one moment of time, a majority will be dead in about 19. years. at the end of that period then a new majority is come into place; or in other words a new generation. each generation is as independant of the one preceding, as that was of all which had gone before. it has then, like them, a right to chuse for itself the form of government it believes most promotive of it’s own happiness: consequently to accomodate to the circumstances in which it finds itself that recieved from it’s predecessors; and it is for the peace and good of mankind that a solemn opportunity of doing this every 19. or 20. years should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation to the end of time, if any thing human can so long endure.   it is now 40. years since the constitution of Virginia was formed. the same tables inform us that, within that period, two thirds of the Adults then living are now dead. have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two thirds who, with themselves compose the present mass of Adults? if they have not, who has? the dead? but the dead have no rights. they are nothing; and nothing cannot own something. where there is no substance, there can be no accident. this corporeal globe, and every thing upon it, belongs to it’s present corporeal inhabitants, during their generation. they alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction: and this declaration can only be made by their majority. that majority then has a right to depute representatives to a Convention, and to make the Constitution what they think will be best for themselves.   but how collect their voice? this is the real difficulty. if invited by private authority to County or district meetings, these divisions are so large that few will attend, and their voice will be imperfectly, or falsely pronounced. here then would be one of the advantages of the Ward-divisions I have proposed. the Mayor of every Ward, on a question like the present, would call his ward together, take the simple Yea or Nay of it’s members, convey these to the County court, who would hand on those of all it’s wards to the proper general authority, and the voice of the whole people would be thus fairly, fully, & peaceably expressed, discussed & decided by the common reason of the society. if this avenue be shut to the call of sufferance it will make itself heard thro’ that of force, and we shall go on, as other nations are doing, in the endless circle of oppression, rebellion, reformation; & oppression, rebellion, reformation again, and so on forever.

These, Sir, are my opinions of the governments we see among men, & of the principles by which alone we may prevent our own from falling into the same dreadful track. I have given them at greater length than your letter called for. but I cannot say things by halves; and I confide them to your honor, so to use them as to preserve me from the gridiron of the public papers. if you should approve & enforce them, as you have done that of equal representation, they may do some good. if not, keep them to yourself as the effusions of withered age and useless time. I shall, with not the less truth, assure you of my great respect and consideration.

Th: Jefferson

PoC (DLC); at foot of first page: “H. Tompkinson esq.,” with TJ’s adjacent note in a different ink that this was “a pseudonomy for Samuel Kerchival.” Printed in Woodstock Sentinel of the Valley, 25 Nov. 1826, and Kercheval, Jefferson’s Letters description begins Samuel Kercheval, ed., Mr. Jefferson’s Letters on the Subject of Convention, 1829 description ends , 3–10. Enclosed in TJ to Joseph C. Cabell, 14 July 1816, and probably returned in Cabell to TJ, 4 Aug. 1816.

For TJ’s draught of a constitution annexed to the notes on virginia, see PTJ description begins Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, eds., The Papers of Thomas Jefferson, 1950– , 39 vols. description ends , 6:294–308. amovability: “liability to dismissal” (OED description begins James A. H. Murray, J. A. Simpson, E. S. C. Weiner, and others, eds., The Oxford English Dictionary, 2d ed., 1989, 20 vols. description ends ). TJ proposed division into wards on multiple occasions (TJ’s 1778 Bill for the More General Diffusion of Knowledge [PTJ description begins Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, eds., The Papers of Thomas Jefferson, 1950– , 39 vols. description ends , 2:526–35]; Draft Bill to Create Central College and Amend the 1796 Public Schools Act, [ca. 18 Nov. 1814]; TJ to Cabell, 2 Feb. 1816; TJ to Wilson Cary Nicholas, 2 Apr. 1816). Thomas Hobbes used the phrase bellum omnium in omnia (omnes) (“a war of all against all”) in his Elementa Philosophica de Cive (Amsterdam, 1669; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2388), chapter 1, section 12, and chapter 8, section 10. where there is no substance, there can be no accident: TJ is contrasting the Aristotelian concepts of substance, “the essential element underlying phenomena,” and accident, “something that does not constitute an essential component” (OED description begins James A. H. Murray, J. A. Simpson, E. S. C. Weiner, and others, eds., The Oxford English Dictionary, 2d ed., 1989, 20 vols. description ends ).

1Preceding two words interlined in place of “a contrary.”

2Sentinel of the Valley and Jefferson’s Letters have “here” at this point.

3Reworked from “true principle of republicanism.”

Index Entries

  • Aristotle; referenced search
  • De Cive (T. Hobbes); quoted by TJ search
  • Hobbes, Thomas; De Civequoted by TJ search
  • Jefferson, Thomas; Literary Quotes; Hobbes search
  • Jefferson, Thomas; Opinions on; publication of his letters search
  • Jefferson, Thomas; Opinions on; Va. constitution search
  • Jefferson, Thomas; Writings; draft constitution for Va. search
  • Jefferson, Thomas; Writings; Notes on the State of Virginia search
  • Kercheval, Samuel; letters to search
  • Notes on the State of Virginia (Thomas Jefferson); TJ’s draft Va. constitution in search
  • Virginia; constitutional convention for proposed search
  • Virginia; constitution of (1776) search
  • Virginia; TJ drafts constitution for search