James S. Gaines’s Plan for a New Virginia Constitution and Revised Legal Code
A New plan or form of Government—
Divisions of the State
1. The state of Virginia shall as follows be laid off into three departments the first thirty Counties lying along the atlantic ocean shall be called the Eastern department the next thirty two Counties lying parallel with the Eastern department shall be denominated the middle department and the thirty Counties lying North & West of the middle department shall be called the Western department. 2. each department shall be again laid off into Senatorial districts of eight Counties each and each senatorial district shall be subdivided into representative districts of two counties each—
Article 1. Sec. 1. all legislative powers herein granted shall be vested in a General assembly of the State of Virginia. which shall consist of a Senate and house of Representatives. 2. There shall be but one senator from each Senatorial district and one representative from each representative district who shall receive for their services while serving on the General assembly a compensation that shall neither be increased or diminished1 during the time for which they shall have been Elected. 3. No foreigner emigrating to this State after the adoption of this constitution shall be elected to serve in the General assembly or appointed to fill any office civil or military of trust or emolument under the authority of this State 4. no person shall be elected to serve on the General assembly who is a practitioner of the law, or preacher belonging to any religious sect of people, or who shall be licensed to sell goods wares and merchandize by wholesale or retail, or to keep a public house or who shall be appointed to fill any office civil or military under the authority of this State or of the United States 5. No senator or representative shall during the time for which he shall have been Elected be appointed to any civil office under the authority of this State
6 Elections to elect members to the General assembly shall be held on the fourth monday in august to be continued from day to day if by any casualty it cannot be concluded on the first day: 7. The sheriffs of Counties shall on the tenth day subsequent to the day of election convene at some convenient place in each senatorial district and from the poll so taken in their respective Counties return as senator the person having the highest number of votes in the whole district and also as representative the person having the highest number of votes in each representative district. 8. all free white persons enrolled on a muster list or the list of a tax gatherer (except those who shall hereafter be excepted) shall be entitled to vote for a member of the house of representatives who shall vote by ballot and not otherwise. 9. all persons possessed of a freehold Estate of fifty acres of land which shall be in the occupency of himself or a tenant at will shall be entitled to vote for a senator and shall give his vote viva voice and not otherwise. 10. No person holding any lucrative office under the authority of this State shall be entitled to the right of suffrage no person born after the adoption of this Constitution who cannot read & write and who does not understand arithmatic as far as the rule of Three shall be entitled to vote for members of the General assembly. No person shall be entitled to the right of suffrage who have been guilty of a breach of any of the penal laws of this State which thereby shall have subjected him to infamous punishment untill restored to such forfeited privilege by the Judge of the superior court where such offence shall have been committed No foreigner emigrating to this State after the adoption of this constitution shall be entitled to the right of suffrage. 11. The Legislative shall assemble at the Capitol in the City of Richmond once in each year & Such meeting shall be on the first monday in December except they shall by law appoint a different day. 12. The attendance of three Senators and twelve members of the house of Representatives from each department shall constitute a quoram to do business but a smaller number2 may adjourn from day to day untill such quoram shall have been completed. 13. Each house shall be the sole Judges of the elections, returns, and qualifications of its own members may compel the attendance of absent members in such manner and under such penalties as the General assembly shall by Law provide may determine the rules of its own proceedings punish its members for disorderly behavior and with the concurrence of two thirds of both houses expel a member. 14. all Bills shall originate in the house of representatives and when having passed thru several readings shall before it become a law be sent to the Senate for their concurrence if they concur the speaker shall sign the bill if they do not concur the bill shall be returned with their objections to the house of representatives who shall enter the same at large on their Journals and proceed to reconsidder if after such reconsideration two thirds of that house shall again pass the Bill the speaker of the senate shall sign the same which shall become a Law any thing to the contrary notwithstanding. But in all such cases the votes of both houses shall be determined by yeas and nays and the names of the persons voting for and against the bill shall be entered on the Journals of both houses respectively. If any bill shall not be returned by the Senate within six days sundays excepted after it shall have been presented to them the same shall become a Law in like manner as if they had concurred except the house of representatives by their adjournment prevent its return in which case the bill shall be Lost. 15. The Journals of both houses respectively shall be published anually together with a regular Statement and account of the receipts and expenditures of all public money one for each member of the General assembly and one for each magistrate throughout the state 16. No money shall be drawn from the Treasury but in consequence of appropriations made by Law and all monies appropriated to the Establishment of Seminaries of Learning or public improvements of any description shall be levied exclusively on the inhabitants of senatorial districts where such seminaries may be established or such public improvements shall have been so made 17. Taxes shall be uniform throughout the State and the like tax shall be paid on every hundred dollars in any of the Chartered Banks of this State as on a Hundred dollars worth of land according to the equalizing Law. 18. at the first session of the General assembly after the adoption of this Constitution the Judges of the superior courts shall convene at the Capitol in the City of Richmond for the purpose of revising and simplifying the whole body of the laws of this State now in force and such Laws when so revised and made conformable to the principles of this constitution shall by the General assembly be made permanent and shall not thereafter be repealed or revised untill two thirds of the Judges of said superior courts shall petition to the General assembly to that effect. 19. The General assembly shall pass no Laws subjecting Lands whereon the owner resides Household and Kitchen furniture plantation tools or provisions necessary for the support of his or her families to the payment of any debts which shall be contracted after the adoption of this Constitution. 20. all Laws which shall be passed by the General assembly contravening the principles of this constitution or of the constitution of the united States or infringing any of the fundamental rights apertaining to freemen shall be null and void from and after the passing thereof. 21. The yeas and nays shall be taken in the house of representatives on all questions that shall be decided on of a public and general nature which shall be inserted in their Journals. 22. The seats of the members of both houses of the General assembly from the Eastern department shall be vacated at the expiration of the first session the seats of those from the Western department at the expiration of the second session and the seats of those from the middle department at the expiration of the third Session and so to continue alternately—
Article 2. sec. 1. The executive powers shall be exercised by a Governor under the regulation of such Laws as the General assembly shall think expedient to pass 2. at the first meeting of the General assembly the senate shall proceed to Elect by ballot a Governor and Lieutenant Governor for three years who shall be ineligible three years after having been twice Elected they shall be allowed by the house of representatives a compensation for their services quarter yearly which shall neither be increased or diminished3 during their continuance in office they shall not during such time receive any other emolument under the authority of this State or of the united states they shall be natural born Citizens of this State but shall not both be Elected from the same department. 3. The Lieutenant Governor shall be speaker of the Senate and shall have the casting vote whenever they shall be equally divided. 4. In case of the removal by impeachment of the Governor from office or of his death, resignation, or inability to discharge the duties thereof the same shall devolve on the Lieutenant Governor and the General assembly shall by Law provide for the case of removal, death, resignation or inability both of the Governor and Lieutenant Governor declaring by what mode such vacancies shall be supplied untill the disability be removed or regular Elections shall have taken place 5. In case of the death resignation or inability to act of any of the members of the General assembly the Governor shall issue writs of Election to supply any such vacancy that may so happen. 6. The Governor shall by and with the advice and consent of the senate two thirds concurring therein nominate and appoint the Judges of the court of appeals and of the superior courts the attorney General the public Treasurer the register of the Land office and clerks of both houses of the General assembly. but their salaries shall severally be allowed them by the house of representatives 7. The Governor shall appoint the military field officers and they shall appoint the other commissioned officers but the appointment of the noncommissioned officers shall devolve on the companies severally. 8. he shall at the commencement of each session report to the General Assembly the state of the commonwealth and exhibit a regular statement of her finances which shall be entered at large on the Journals of the house of representatives he shall recommend to their consideration such measures as he may Judge necessary and expedient and may on extraordinary occasions convene both houses of the General assembly. 9. The Governor Lieutenant Governor and all civil officers of the State shall be removed from office on impeachment for and conviction of Treason bribery or other high crimes and misdemeanors
Article 3. Sec. 1. The Judicial power of this State shall be vested in one Supreme Court or Court of Appeals and superior Courts to be held in each County together with such other County Courts as the General assembly shall think expedient to Establish. 2. The Judges of both the supreme and Superior Courts shall hold their offices during good behavior and shall quarter yearly receive for their services a compensation which shall not be increased or diminished4 during their continuance in office. 3. The Judges of the superior courts of common Law shall give relief in equity as well as in Law. 4. no appeal from these courts to the Court of appeals shall be had of right but on application being made to the Judges of the court of appeals they may grant a supersidius if in their opinion a wrong Judgement has been given in the superior Court where such decision was had—
Article 4. Sec. 1. The magistrates in each Captains district shall by rotation take in a List of all taxable property in said districts shall be furnished by the public printer with blank books for that purpose and in consequence of such services be exempted from working on roads or performing military duty in time of peace 2. The office of Sheriff shall by the County Court be let to the highest bidder and the money arising therefrom converted to the use of the Poor Establishment and County Charges—
Article 5. Sec 1. There shall be erected at or near the centre of each senatorial district a house for the reception of the poor a foundling Hospital and work house to be under such regulations as the General assembly shall from time to time adopt
Article 6. Sec. 1 There shall be erected on some eligible spot over ten and not to exceed twenty miles from the City of Richmond an arsenal and military academy at which place all the arms implements of war and military Stores shall be deposited 2. The Governor shall by and with the advice and consent of the senate select from each department a certain number of young men not to exceed ten to be taught at the military academy in the most approved arts and sciences of modern warfare5 3. The General assembly shall pass such Laws and make such regulations as they shall think necessary and expedient for carrying the foregoing article into operation 4. In case of an Invasion by a foreign foe the militia from the Eastern department shall be called out in the months of June, July, august, and September those from the Western department in the months of October, November, December, and January and those from the middle department in the months of February, March, april and May, under such other regulations as the General assembly shall from time to time adopt—
Article 7. Sec 1. whenever one third of the members of the house of representatives shall deem it expedient to call a convention for the purpose of revising this Constitution the General assembly shall without delay pass a Law directing the Sheriffs of Counties and sergeants of Corporations to open a poll at the next Election thereafter for the purpose of taking the sense of the people if two thirds of the whole number of voters in the State shall be in favor of a revision a Law shall be passed at the next General assembly for the purpose of calling a convention—
Article 8. Sec. 1. The Senators and members of the house of representatives shall in all cases except treason felony and breeches of the peace be privileged from arrest during their attendance at the General assembly and in going to and returning from the same and for any speech or debate in either house they shall not be questioned in any other place—
Article 9. sec. 1. The senators and Representatives before mentioned and all executive Judicial and military officers of the Government shall be bound by oath (or affirmation) to support this Constitution but no religious test shall be required as a qualification to any office or public trust under the authority of this State—
A criminal Code of Laws—
Rape in the first degree Murder in the first degree bigamy in the 1. degree6 robbing on the highway and the burning a house at that time the residence of some person shall constitute the first grade of offences and if committed in the first degree of malignancy shall be punished with hard Labor and solitary confinement in the Penitentiary House during Life, and if in the second degree of malignancy for a term of years, over 25. and not to exceed 30. years. Treason, Manslaughter, Treason7 Perjury, Forgery or Counterfeiting, Horse stealing or the wilfully Stabbing or wounding any person with the appearance of an intent to kill, shall constitute the second grade of offences and shall be punished with hard Labor and solitary confinement for a term of years, over 15. and not to exceed 25. years; The publishing any thing Hostile to this Government by speaking, writing, or printing whilst a negociation is pending betwixt this Country and any foreign Court, that may thereby impede such negotiation8 shall Constitute the third grade of offences, and shall be punished with hard Labor &c for a term of years, over 10. and not to exceed 15. years. the offences that comes under the description of Petty Larceny shall be punished by making restoration of four times the value of the thing stolen by standing in the Pillory from three to six hours, and by being deprived of all the rights of a free white person while residing in this State, untill restored to such forfeited privilege by the Grand Jury, and assented to by the Judge of the superior Court, where such conviction was had. Drunkeness, fighting, Cursing and swearing9 or making use of such indecent Language as may have a tendency to Corrupt the morals of the people, shall constitute the fourth grade of offences, and be punished with a fine over twenty and [not]10 to exceed thirty dollars, or a deprivation for twelve months of all the rights of a free white person11
The defects of the Constitution of this State are 1. The want of Responsibility in the Legislative and executive12 branches of the Government the senate by being Elected for four years and from Large districts are scarcely directly or indirectly accountable to their constituents and by having an unqualified negative on the acts of the house of delegates greatly lessens the responsibility of that branch of the Government and in the executive branch by the Governor having a Council and by having no vote at the council board. 2. The General assembly are too numerous there being two members from each County the means of Corruption may become too General Candidates have it too much in their power to influence some and overawe others especially since their votes are given viva voice. 3. The General assembly by having the appointment of the Governor and Council and all other important officers of the Government and the giving them their Salaries acquire thereby an undue influence over the other departments the Government is too much blended and all power result exclusively to the Legislature. 4. The inequality of the representation of the people both in the Senate and house of delegates arising from the great difference in the extent and population of the senatorial districts and of the Counties. 5. The right of Suffrage as it respects the state and federal Legislature being withheld from nearly one half of the Citizens of this Commonwealth who contribute to the protection and support of the Government 6. The Bill of Rights not being recognized by the Constitution is therefore no part of the Constitution and of course of no validity. 7. The defects of the Judiciary first the multitude of Courts which occasion useless delays and expences Second the wrong organization of the Courts. 1. by being a useless number of County Courts in a year 2. The want of responsibility in the magistrates. 3. The power of increasing their number without limitation and 4. Their chosing a sheriff from among themselves—
MS (DLC: TJ Papers, 193:34427–31); entirely in Gaines’s hand; undated.
1. Manuscript: “dimished.”
2. Manuscript: “mumber.”
3. Manuscript: “dimished.”
4. Manuscript: “dimished.”
5. Manuscript: “warefare.”
6. Preceding five words interlined.
7. Word interlined.
8. Manuscript: “nogotiation.”
9. Gaines here canceled “the singing vulgar songs.”
10. Omitted word editorially supplied.
11. Remainder of text on a separate sheet.
12. Manuscript: “exective.”
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