Petition to the General Assembly of Virginia
[2 or 3 Nov. 1798]
the Petition of sundry persons inhabitants of the county of Albemarle, and citizens of the said commonwealth, respectfully sheweth
That though civil government, duly framed & administered be one of the greatest blessings and most powerful instruments for procuring safety1 & happiness to men collected in large societies, yet such is the proneness of those to whom it’s powers are necessarily deputed to pervert them to the attainment of personal wealth & dominion, & to the utter oppression of their fellow-men,2 that it has become questionable whether the condition of our aboriginal neighbors, who live without laws or magistracies, be not preferable to that of the great mass of the nations of the earth who feel their laws & magistrates but in the weight of their burthens: that the citizens of these United states, impressed with this mortifying3 truth when they deposed the abusive government under which they had lived, founded their new forms, as well particular as general, in this fact & principle, that the people themselves are the safest deposit of power, & that none therefore should be trusted to others which they can competently exercise themselves: that their own experience having proved that the people are competent to the appointment or election of their agents, that of their chief executive magistrates was reserved to be made at short periods4 by themselves, or by others chosen by themselves; as was also the choice of their legislatures, whether composed of one or more branches: that in the Judiciary department sensible5 that they were inadequate to difficult questions of law, these were generally confided to permanent judges but reserving to juries the decision both of law and fact where in their opinion bias in the permanent judge might be apprehended, & where honest ignorance would be safer than perverted science: and reserving to themselves also the whole department of facts, which constitutes indeed the great mass of judiciary litigations. that the wisdom of these reservations will be apparent on a recurrence to the history of the country from which we chiefly emigrated, where the faint glimmerings of lib[erty] & safety now remaining to the nation are kept in [feeble] life by6 the [reserved] powers of the people only: that [in] the establishment of the trial by jury however a great [in]consistence has been overlooked in this & some other of the states, or rather has been copied from their original without due attention; for while7 the competence of the people to the appointment even of the highest Executive, & of the legislative agents is admitted & established, & their [compe]tence to be themselves the triers of Judiciary facts,8 [the] appointment of the special individuals9 from among themselves who shall be such triers of fact, has not been left in their hands, but has been placed by law in officers, dependant on the Executive or Judiciary bodies: that triers of fact are therefore habitually taken in this state from among accidental bystanders, & too often composed of [foreign]ers attending on matters of business, & of10 idle persons, collected for purposes of dissipation; and, in cases interesting to the powers of the public functionaries, may be speci[ally] selected from descriptions of persons to be found in every co[untry] whose ignorance or dependance renders them pliable to the will and designs of power: that in others of these states11 this germ of rottenness in the institution of juries has been carefully excluded, & their laws have provided,12 with laudable foresight, for the appointment of jurors by select men, chosen by the people themselves; and to a like restitution of13 principle, & salutary precaution against the abuse of power by the public functionaries, who never did yet, in any country fail to betray & oppress those for the care of whose affairs they were appointed, by force if they possessed it, or by fraud & delusion if they did not, your petitioners pray the timely attention of their legislature, while that legislature (and with a heartfelt satisfaction the petitioners pronounce it) are still honest enough to wish the preservation of the rights of the people, and wise enough to circumscribe in time14 the spread of that gangrene which,15 sooner than many are aware, may reach the vitals of our political existence.
And lest it should be supposed that the popular appointment of jurors may scarcely be practicable in a state so extensive & circumstanced as ours, your petitioners will undertake to suggest one mode, not presuming to propose16 it for the adoption of the legislature, but firmly relying that their wisdom will devise a better: they observe then that by a law already passed for the establishment of schools, provision has been made for laying off every county into districts or precincts; that this division which offers so many valuable resources for the purposes of information, of justice, of order, & police, may be recurred to for the object now17 in contemplation, and may be completed for this purpose, where it has not been done for the other; that the inhabitants of every precinct may meet at a given time & place in their precinct, and in the presence of the constable or other head officer of the precinct, elect from among themselves some one to be a juror; that, from among those so chosen in every county, someone may be designated by lot, who shall attend the ensuing session of the federal court within the state, to act as grand & petty jurors, one of these from every Senatorial district being designated by lot for a grand juror, and the residue or an allotted portion thereof18 attending to serve as petty jurors, to be designated in like manner by lot in every particular case: that of the others so chosen in every county composing a district for the itinerant courts of this commonwealth, so many may be taken by lot as shall suffice for grand & petty juries for the district court next ensuing their election: and the residue so chosen in each county may attend their own county courts for the same purposes till another election,19 or, if too numerous, the supernumeraries may be discharged by lot: and that such compensation may be allowed for these services as, without rendering the office an object worth canvassing, may yet protect the juror from actual loss: That an institution on this outline, or such better as the wisdom of the General assembly will devise, so modified as to20 guard it against the intrigue of parties, the influence of power, or irregularities of conduct, and further matured from time to time as experience shall develope it’s imperfections, may long preserve the trial by jury, in it’s pure and original spirit, as the true tribunal of the people, for a mitigation in the execution of hard laws when the power of preventing their passage is lost, and may afford some protection to persecuted man, whether alien or citizen,21 which the aspect of the times warns us we may want.
And your petitioners, waiving the expression of many important considerations which will offer themselves readily to the reflection of the General assembly, pray them to take the premises into deep & serious22 consideration, and to do therein for their country23 what their wisdom shall deem best, & they, as in duty bound, shall ever pray &c.
PrC (DLC: TJ Papers, 106:18101–4); entirely in TJ’s hand; undated, but see below; faint, with words in brackets supplied from Dft; at head of text: “To the General Assembly of the Commonwealth of Virginia”; several emendations made by TJ in ink reflect changes suggested by Madison in his letter of 31 Oct., which TJ received on 2 Nov. (see notes 4, 5, and 18 below). Dft (same, 232:42018–9); undated, but see note below. MS (Vi); in two unknown hands; incorporates changes made by TJ in ink to PrC; variations in capitalization, abbreviations, punctuation, and spelling; with 23 signatures affixed; endorsed by clerk: “Albemarle Petn. December 24. 1798 to whole on Friday next”; in another hand: “Nicholas.”
This petition calling for the election of jurors is a successor to one TJ drafted in 1797 for the Virginia House of Delegates, in response to the grand jury presentment against Virginia Representative Samuel J. Cabell for criticizing federal policies in a letter to his constituents. The 1797 document defended the right of representatives to communicate freely with their constituents and noted defects in the method of selecting jurors that were leading to a perversion of the judicial system. TJ in early drafts sought to restrict grand jurors to “native citizens of the United States,” but his recommendation was omitted from the petition as presented to the House of Delegates (Petition to Virginia House of Delegates at 3 Aug. 1797). The composition of juries remained a matter of concern to TJ, and he probably discussed the issue with Madison when he visited Monticello about 15 Oct. The day after Madison’s departure, TJ drafted this petition and on 26 Oct. forwarded what was probably a fair copy of it to Montpelier for Madison’s suggestions, which subsequently TJ incorporated on his press copy (Madison, Papers, 17:xxvii; TJ to Madison, 26 Oct. and 3 Nov., and Madison to TJ, 31 Oct. 1798). Then, as he had done in 1797 to obscure his authorship, TJ had others prepare a copy of the emended document for circulation and presentation to the Virginia Assembly. Twenty-three inhabitants of Albemarle County signed the petition including Thomas Bell, Thomas Mann Randolph, Peter Lott, and Thomas Carr, Jr. (MS in Vi, described above; TJ to Madison, 3 Nov. 1798). Perhaps to garner support in the House of Delegates TJ also enclosed a copy to his friend, Caroline County delegate John Taylor. Wilson Cary Nicholas, an Albemarle County delegate, was entrusted with carrying the petition to Richmond, where it was presented to the House on 24 December. Discussion of it, however, was continually postponed and the assembly adjourned without having taken action (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Dec. 1798–Jan. 1799, 37, 51, 56, 72, 104; TJ to Taylor, 26 Nov. 1798). For the Republican response to the petition in the Virginia House of Delegates, see John Taylor’s letter to TJ of 15 Feb. 1799.
Massachusetts, Vermont, and Connecticut were among the states with laws to exclude the germ of rottenness in the formation of juries. The Massachusetts statutes provided for the election of grand jurors from among freeholders of a town and the appointment of petit jurors “of good moral character and qualified as the constitution directs” from lists provided by the selectmen of each town. The constitution of Vermont called for the passage of legislation to insure “against every Corruption or Partiality” in the choice or appointment of juries. A state statute called for jurors to be able and substantial freeholders. In Connecticut jurors were selected at a town meeting in January from “judicious Freeholders” with a freehold estate rated at 50 shillings or more (The Perpetual Laws of the Common-wealth of Massachusetts, from the Commencement of the Constitution, in October, 1780, to the Last Wednesday in May, 1789 [Boston, 1789], 114–19; Acts and Laws of the State of Vermont, in America [Dresden, Vt. 1779], 9, 65–7; Acts and Laws of the State of Connecticut, in America [New London, 1784], 108–10; TJ to Taylor, 26 Nov. 1798).
For the law passed for the establishment of schools in 1796, see Vol. 29:178n, 288n.
1. In Dft TJ first wrote “is the most effectual instrument for the security” before altering the passage to read as above.
2. “Men” interlined in Dft in place of “citizens.”
3. Word interlined in Dft in place of “melancholy.”
4. Preceding three words interlined in ink by TJ.
5. From this point in Dft to ampersand TJ first wrote “of their own incompetence to the decision of questions of law, they confided [them?] in ordinary to permanent judges, reserving to themselves only (in) extraordinary cases where they should have reason to suspect a bias in their judges, and reserving to themselves also” before revising it to read: “that they were inadequate to questions of law, these were in ordinary cases, confided to permanent judges, reserving to juries only extraordinary cases where a bias in the permanent judge might be suspected.” At Madison’s suggestion TJ altered the passage in ink in PrC to read as printed in text above.
6. In Dft TJ first wrote “liberty now remaining are kept alive only (…) by the force of in” before altering the passage to read as above.
7. From this point the MS in Vi is completed in a different hand.
8. In Dft TJ first wrote “to decide themselves judiciary questions of fact” before altering the passage to read as above.
9. Preceding three words interlined in Dft in place of “[them?].”
10. In Dft TJ here canceled “lounging.”
11. In Dft TJ here canceled “and particulary in those to the Eastward of the union.”
12. In Dft TJ first wrote “this source of rottenness has not been [neglected?] that” before altering the passage to read as above.
13. Preceding two words interlined in Dft in place of “attention to.”
14. Preceding three words interlined in Dft in place of “foresee.”
15. In Dft TJ first concluded this sentence “sooner than would have been believed may reach the vitals of our constitution” before altering it to read as above.
16. Interlined in Dft in place of “prescribe.”
17. Passage from this point to semicolon interlined in Dft in place of “proposed,” with interlineation extending into right margin.
18. Preceding five words interlined by TJ in ink.
19. Passage from this point to colon interlined in Dft.
20. Here in Dft TJ canceled “shield.”
21. In Dft TJ first concluded this sentence “which the awfulness of the times warns us to (foresee) expect” before altering it to read as above.
22. Preceding three words interlined in Dft.
23. Preceding three words interlined in Dft.