V. Communication from House of Delegates to Senate concerning Money Bills
[9 January 1778]
Reasons to be offered at the conference to be desired of the Senate in answer to their reasons delivered at the last conference.
The house of delegates not being satisfied with the reasons urged by the Senate in support of their amendments to the resolution for allowing to Thomas Johnson the sum of £15-5-6 have desired this second conference to shew the insufficiency of the said reasons and to propose that some expedient may be adopted by the two houses for reconciling their difference of opinion.
The resemblance between the constituent parts of our legislature and that of Great Britain is supposed by the Senate so faint that no ground remains for those jealousies which have prompted the commons of Gr. Br. against their house of lords. This might have been, and doubtless was, urged at the time our constitution was formed as a reason why the Senate and delegates should have equal powers over money bills: but the argument having been then overruled, the powers of the Senate as to this point being fixed by the constitution on the same restrictive footing with those of the Lords in the British legislature, it is conceived not to be the proper question of this day whether the resemblance between them in general be faint or strong, well or ill grounded; but whether the constitution has not made them to resemble in this point?
Had those who framed the constitution, as soon as they had completed that work, been asked, man by man, what a money bill was, it is supposed that man by man they would have referred for answer to the well-known laws and usage of parliament, or would have formed their answer on the parliamentary idea of that term. It’s import at this day must be the same it was then. And it would be as unreasonable now to send us to seek it’s definition in the subsequent proceedings of that body as it would have been for them at that day to have referred us to such proceedings before they had come into existence. The meaning of the term must be supposed compleat at the time they used it, and to be sought for in those sources only which existed at the time. Constructions which do not result from the words of the legislator, but lie hidden in his breast till called forth ex post facto by [subsequent]1 occasions are dangerous and not to be justified by ordinary emergencies.
Nor do we by this set up the parliament of England as the expositor of our constitution, but the law of parliament, as it existed and was evidenced by usage at the time the term in question was inserted in our instrument of government; a law coeval with the common law itself and no more liable as adopted by us to subsequent change from that body than their common or statute law which we have in like manner adopted: to suppose this branch of law not existing in our code, would shake the foundation of our whole legal system, since every legislative proposition which has been passed or rejected since the first establishment of a legislature in this country has been determined to be law, or not law by the forms of parliamentary proceedings.
With as little justice may it be said that this is referring for the definition of a term to multiplied disputes, which have for ages agitated the parliament of England, and which no time will decide; that it is proving what is clear by what is very obscure, and unsettling what is fixed; since we conceive that researches into parliamentary history will decisively shew that their practice in this matter has been clear, fixed, and antient; and that for ages past it has produced no agitation unless we call by that name some groundless assertions by the lords in the course of the last century. But these assertions they departed from in practice at the very time they advanced them and at all times after, they stand contradicted by the declarations of the commons, and the constant usage of both houses, which agreeing together are supposed to form the strongest evidence what the law of parliament is on this point. To prove this right as uniformly claimed and exercised by the commons and assented to in practice by the lords the delegates will subjoin some proceedings of parliament in addition to the passage cited by the senate.
That a bill for raising money by way of tax is a money bill, is admitted by the Senate and need not therefore be proved.
That bills for raising money by rates and impositions on merchandize are also considered as money bills will appear on recurring to the parliamentary proceedings of 1671, in which it is affirmed º ‘that there is a fundamental right in the house of commons alone in bills of rates and impositions on merchandize as to the matter, the measure, and the time,’ and also by their declaration of 1689. ‘that the commons have always taken it for their undoubted privilege (of which they have ever been tender and jealous) that in all aids given to the king by the Commons the rate or tax ought not to be any way altered by the lords,’ which is supposed to be the passage cited by the Senate as of the year 1671.
That bills for applying forfeitures º in aid of the public revenue are not amendable by the lords appears by the proceedings of 1700 on the bill for applying Irish forfeitures to the use of the public, to which the lords were not permitted to make any amendments.2
The right of levying money in whatever way being thus exercised by the Commons, as their exclusive office, it follows as a necessary consequence that they may also exclusively direct its application. ‘Cujus est dare, ejus est disponere,’ is an elementary principle both of law and reason: that he who gives may direct the application of the gift, or in other words may dispose of it: that if he may give absolutely he may also carve out the conditions, limitations, purposes and measure of the gift, seems as evidently true as that the greater power contains the lesser. Parliamentary usage º has accordingly approved this reasoning. In July 1678 the commons resolved ‘that it is their undoubted and sole right to direct, limit, and appoint in all aids and supplies granted to the king the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which ought not to be changed by the house of lords.’ º In December of the same year the commons having directed the payment of money and the lords proposed an amendment thereto, the former declared ‘that their lordships never before changed any such disposition made on a supply granted by the commons.’ º In 1701 the lords having amended a bill for stating and examining the public accounts by inserting a clause for allowing a particular debt, the commons disagreed to the amendment and declared for a reason ‘that the disposition as well as granting of money by act of parliament hath ever been in the house of commons; and that the amendment relating to the disposal of money does entrench upon that right.’ º And to a bill of the same nature the year following, the lords having proposed an amendment by adding the names of some commissioners, the commons disagreed to the amendment and declared ‘that their right in granting, limiting, and disposing public aids being the main hinge of the controversy they thought it of the highest concern that it should be cleared and settled.’3 They then go on to prove the usage by precedents and declarations and from these conclude that the limitation, disposition, and manner of ‘account belongs only to them.’ In reply the Lords said ‘they declined all arguments concerning the rights of the commons in granting, limiting and disposing public aids and therefore forebore to answer any arguments of that kind’; but proceeded to insist that the business then depending was of quite another nature. And at some subsequent conferences between the two houses during the same session º it was repeatedly declared ‘that the lords could not supply any deficiency or apply any surplusage of the public money in case any should be found’; and this declaration does not appear to have been contradicted by the Lords either then or at any time after.
These precedents are supposed to prove not only that the disposal or application of public money is equally with the raising of it the exclusive office of the commons, but also that it makes no difference whether it be of money then actually in the treasury, or yet to be raised on the people, nor whether the raising and disposing be in the same, or in separate bills.
Tho the precedents referred to by the Senate in the proceedings of the Council and H. of Burgesses in the years 1771, 1772, and 1773 (the first of which however we suppose to be mistaken for 1772) might perhaps be well accounted for from the nature of the amendments, from the history of the times, or from other causes, and tho’ the delegates might produce from the same records proofs much more decisive in their favor, yet they decline resting it on that bottom, because they do not think that the present determination should be influenced by the practice of those who have themselves only copied from the same original.4 Both their opinions and yours must be decided by an application of the same common rule. When the delegates therefore in their former reasons mentioned the proceedings of the Council and H. of burgesses they did not think it proper to refer to them as evidence of what the law of parliament was, but only to prove in general that they admitted it to be their law.
How dangerous it is to appeal to any other authorities from the parliamentary records the true text of decision will appear also by examining the whole passage of which a part only was cited from the commentaries of Judge Blackstone, a writer celebrated indeed but whether most for his attachment to the prerogatives of the crown or to the rights of the people would be worthy of consideration where the question is on one of those rights which have been of the greatest value to the people, the right of giving and disposing of their own money. That writer after the definition cited from his book by the Senate goes on to quote a passage from Judge Hale’s treatise on the jurisdiction of parliament, which is to be found more at large in Bro[ke’s] abridgement entitled parl. pt. 4. º There it appears to be a saying of Kirbie a clerk of the parliament who lays down in express terms or by direct implication these positions as of the law of parliament. 1. That the Lords may amend a bill for granting aids. 2. That if the amendment be by shortening the duration of the grant they need not return the bill to the commons for their concurrence. 3. That the king may alter a bill. Brook indeed adds a quaere to the case; but that judge Blackstone disapproved of it cannot be inferred from his words. It is therefore submitted to the consideration of the Senate whether a writer who can cite or refer to such positions without condemning them in decisive and unequivocal terms may be appealed to as an adequate and impartial judge of the subject. He refers to no authority whatever for that part of his opinion which the Senate quote and rely on.5 But to waive further examination of the grounds of his opinion, the judges of the common law can take no cognisance of the law of parliament; it can never come judicially in question before them. Their sayings or opinions on the subject must be ever extrajudicial. And they have accordingly always disclaimed a right to give judgment on them. Definitions therefore of parliamentary law by any other court, by a member of a court, or by a private individual, must be rejected as inauthoritative in a parliamentary disquisition.
For these reasons the Delegates still think that the Senate have no authority to amend the vote in question. But open to conviction if it can be shewn they are wrong, and actuated by a strong desire to promote the public service as well as to preserve the constitution entire, they propose to the senate, if they should still adhere to their former opinions, that a select committee may be appointed by each house to meet together in free conference and endeavor to define the office of the two houses in bills, clauses, and votes relating to money, and that such definition, if approved by both houses, may be confirmed by act of assembly.
Dft (DLC). Undated, but drawn up by TJ between 2 Jan. 1778, when he was appointed a member of committee to answer the Senate’s reply of 9 Dec., and 9 Jan. when the committee reported its proposed communication, of which this is the rough draft. The committee report is printed in JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 108–11, with slight modifications, most of which may have been made by TJ himself in taking off a fair copy; also printed in Journal of the Senate, Williamsburg, 1777, p. 42–44. The paper on which TJ composed this document contained the following deleted passage at the top of the first page: “To all princes, states, potentates, & persons the General assembly of the Commonwealth of Virginia sendeth greeting.” This may have been the heading intended for credentials to be given to Philip Mazzei for use on his European mission.
1. The brackets appear in draft but not in the printed versions.
2. The following paragraph is deleted in draft: “3.P.D.218.219.225. They may not alter pecuniary penalties in bills as appears in the proceedings on a bill for preventing occasional conformity.”
3. The following is deleted in draft: “That the antient manner of giving aids was by indenture to which conditions were sometimes annexed; the Lords only gave their consent without making any alteration and this was the continued practice until the latter end of Henry the fifth and in some instances until Henry the seventh. That in the famous record called the indempnity of the Lords and commons settled by the king, Lords and commons, on a most solemn debate in the ninth year of Henry the fourth, it is declared that all grants and aids are made by the commons and only assented to by the Lords. That the modern practice is to omit the Lords out of the granting and name them parties only to the enacting clause of aids granted to the crown; to which their Lordships have always concurred and on conferences departed from their attempts of petty alterations, in acts relating thereunto. That if then all aids be by the grant of the commons, it follows.”
4. The printed version reads for the remainder of the paragraph: “Their practice and our opinions must be proved by the same common rule, the law and practice of parliament; their acknowledgement of the rule proves their submission to it; and that their practice should be tried by the law, not the law by their practice.”
5. The following is in the report as adopted by the House and printed in both House and Senate journals, but not in draft: “Are we then to take it upon his affirmation when contradicted by the uniform current of parliamentary usage?” It is interesting to note that this critical comment upon Blackstone is the part of TJ’s report that underwent more change than any other passage. The draft is heavily scored in this paragraph, and embraces many deletions and interlineations. The inclusion of the sentence just quoted also indicates that TJ continued to amend the phraseology of the passage after composing the draft and before submitting a fair copy to the House. His temerity in challenging the authoritative position of Blackstone was both severe in its method and far in advance of the times (see Jerome Frank, Courts on Trial, Princeton, 1949, p. 1).