USA > Virginia > The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body, Vol. II > Part 15
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Of the course of Alexander White throughout the session, his recorded votes already reported afford incontestible evidence. He was appointed a member of nearly all the select committees to which general topics were referred; and he presided, perhaps, more frequently than any other member in Committee of the
ers to meet and communicate the regulations of commerce and duties proposed by each State, and to confer on such subjects as may concern the commercial interests of both States, and within the power of the respective States; and that the number of the said commissioners should be equal-not less than three nor more than five-from each State; and they should annually meet in the third week in September, if required by the Legislature of each State, or the commissioners thereof, at such place as they should appoint." And, to show still further the truly federal spirit of the majority, they ordered the reso- lution to be sent by the Governor to the Legislatures of all the States in the Union, who were requested to appoint commissioners for the purposes therein expressed. This was a great and definite measure- looking to a general regulation of commerce by all the States-and was altogether in advance of any legislative measure which had then appeared, with the exception of the resolution of Massachusetts adopted during the preceding summer ( Curtis, Vol. I, 336); and it was referred for the consent of the States. In the mean time the Assembly revised their custom-house regulations, and passed a stringent law for the prompt and economical collection of the customs. They also resolved to resent the hostile regulations of Great Britain by laying an additional tonnage on British vessels. If intentions are to be gathered from acts, we may conclude that the men who adopted this vigorous and catholic policy never dreamed of the "alternative" in question, but thought that they had marked out for the future a most decided and energetic course of action. And this policy received the sanction of the Senate four days only before the final adjournment. With this view of the facts, I am strongly inclined to think that the resolution of the 21st of January, which called the meeting at Annapolis, was adopted after many members had left for their homes, and when, in fact, there was hardly a quorum of the House. At the end of the previous ses- sion the House adjourned over one or two days to get a quorum, and was finally compelled to adjourn sine die without one. The present House consisted of one hundred and fifty or sixty members, and we have seen from the ayes and noes on important questions during the session that barely a quorum was present; and, as the resolution was offered by Tyler, who was one of the majority, it is not improbable that the members of the majority present may have regarded it as designed to carry out the scheme which had been deliberately agreed on, and which would require, in due time, the appointment of commis-
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Whole. And it may be recalled as a pleasing reminiscence by his descendents, that, as chairman of the Committee of the Whole, he reported to the House the bill constituting the State of Kentucky, and the bill for establishing religious freedom.
The General Assembly of 1786-'87 began it sessions on the 16th of October, but the House of Delegates did not form a quorum until the 23d, when John Beckley was appointed Clerk, and Joseph Prentis elected Speaker by a majority of twelve over Theodoric Bland. Bland was placed at the head of the Com- mittee of Religion, Thomas Matthews of Privileges and Elec- tions, George Nicholas of Propositions and Grievances, Richard Lee of Claims, Thomas Matthews of Commerce, and James Innes of Courts of Justice. 146
The members of the House who were members of the present Convention, besides Matthews, Nicholas, and Innes, were James Madison, Zachariah Johnston, French Strother, Parke Goodall, Thomas Smith, John Pride, William White, Francis Corbin, Edmund Ruffin, Miles King, Archibald Stuart, David Stuart, Holt Richeson, Richard Cary, John Early, John Prunty, George Jackson, Thomas Turpin, John Marr, Christopher Robertson, James Johnson, Willis Riddick, John Allen, John Howell Briggs, Martin McFerran, Littleton Eyre, John Dawson, Andrew Moore, Samuel Jordan Cabell, Joseph Jones (of Dinwiddie), Samuel
sioners. On the other hand, it should be remembered that Harrison, who was one of the majority, and who had more parliamentary expe- rience than any other member of the House, was in the chair, and not being on very amicable terms with Tyler, who had defeated him in Charles City and driven him to take refuge in Surry, would have been inclined to have scrutinized closely any independent measure coming from such a source. At all events, the "alternative " mentioned by Mr. Madison, however it may have appeared to him with his peculiar views of Federal policy, does not seem very apparent from the facts as they are recorded in the Journal.
146 Madison had not arrived, and could not consistently with the rules of the House be placed on any committee; but Innes in the early part of the session was elected Attorney-General in place of Edmund Ran- dolph, who was elected Governor, and withdrew to attend the courts; and Madison acted as chairman of the committee on many occasions. That Madison, who was not a lawyer, was placed at the head of a com- mittee consisting of the ablest lawyers in the House, is a fresh proof of the universality and accuracy of his acquirements.
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Richardson, Isaac Vanmeter, William Thornton, Binns Jones, William McKee, George Clendenin, Meriwether Smith, Cuthbert Bullitt, John Trigg, Isaac Coles, Benjamin Temple, and James Gordon. 147
The financial condition of the Commonwealth was the first important measure that engaged the attention of the House. A motion was made and carried that the Governor be requested to lay before the House an exact statement of all the taxable property of the State, of duties payable on exports and imports, together with the product of said taxes and duties from the Ist day of January, 1783, to the Ist of October, 1786, specifying the amount of specie received in each year, and the amount of the different species of the public securities, the averages of taxes now due, and the sums of money advanced to the several officers of government between the Ist day of January, 1782, and the present time. 148 This motion was immediately followed by another to appoint a select committee to take into consideration the whole system of finance established by the laws of the Com- monwealth, and to report such regulations therein, and such amendments to the laws thereto, as may to them seem best cal- culated to alleviate the present distresses of the people, and at the same time to preserve inviolate the national faith and honor of the Commonwealth. This motion was unanimously adopted, and Bland, Corbin, George Nicholas, Innes, Lyne, Griffin, Eggleston, Matthews, King, Zachariah Johnston, Thompson, Richard Bland Lee, Turberville, Strother, Archibald Stuart, Campbell, Webb, David Stuart, and Wills composed the com- mittee. The number and ability of the members, who were selected from the great divisions of the State, show the sense entertained by the House of the momentous subject entrusted to their charge. On the 2d day of December, 1786, their
147 Alexander White, a member of the House, did not attend. I have, however, continued my review of the sessions of the Assembly immediately preceding the Convention as necessary to the under- standing of the facts of the times and of the history of many members of the Convention.
148 This interesting report was made on the 25th of November, 1786, and is doubtless on file in the office of the Clerk of the House of Dele- gates. It ought to be published in the Historical Reporter, and in the Southern Literary Messenger. (House Journal 1786-'S7, page 61.)
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report was presented to the House by Colonel Bland, and was, perhaps, the most elaborate paper on our financial affairs that had yet appeared. 149 On the 12th General Matthews, from the Committee of the Whole, reported a series of resolutions founded upon the report, recommending an increase of taxes and mani- festing a firm determination to maintain the credit of the State. An additional tax of five dollars a wheel was recommended to be laid on all coaches and chariots, three dollars a wheel addi- tional on all other four-wheel vehicles, and two dollars a wheel additional on all riding-carriages with two wheels. Clerks of courts were ordered to account with the treasurer for one-third of receipts from their fees. Every practicing attorney was to pay down to the clerks of the respective courts one-tenth of all the fees allowed by law for the services performed by attorneys. Physicians, surgeons, and apothecaries were required to pay an annual tax of five pounds each. A tax of twenty pounds was imposed on all imported riding carriages with four wheels, and of ten pounds with two. Houses in towns were taxed five per centum on the amount of annual rent. Merchants, traders, and factors-native and foreign-were required to take out a license to do business, and foreign merchants belonging to a nation in treaty with the Union were required to pay less than those who did not. These recommendations were adopted, with the excep- tion of the tax on imported vehicles; and Matthews, Meriwether Smith, George Nicholas, and others were ordered to bring in bills to carry the scheme into effect. The House had previously ordered a bill to be brought in allowing taxes to be paid in tobacco ; 150 but a new issue of paper money, called for by some counties remote from market, was voted down. Bills were brought in and passed to amend and reduce into one act the several acts for the appointment of naval officers, and ascertaining their fees; to place the naval officers on the civil list; to regulate the public offices and the mode of keeping the books therein; to reduce into one act the several revenue laws of the State, and for
149 It fills ten or twelve pages of the quarto Journal of the House. (House Journal of 1786-'87, page 71, et seq.)
150 November 13, 1786, House Journal, page 36. On the 23d the House rejected the bill on its passage by a vote of seventy-two to thirty-three.
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more effectually preventing fraud and abuses in collecting the revenue arising from customs; to call in and fund the paper money of the State; to explain, amend, and reduce into one act the several acts for the admission of emigrants to the right of citizenship, and prohibiting the migration of certain persons to the Commonwealth. A bill was passed for the construction of a marine hospital, and for preserving the privileges of embassa- dors. Kentucky, which had failed from unavoidable causes to comply with the requisitions of the act passed at the last session, was authorized to become an independent State.
A bill was also passed to encourage navigation and ship-build- ing, and to regulate and discipline the militia. An export duty of six shillings was laid on every hogshead of tobacco, and a bill passed imposing an additional duty of two per centum, ad valorem, on all goods imported into the State. A bill to supply the United States, in Congress assembled, with a certain sum of money was promptly passed. These measures convey but a faint idea of the number and importance of the subjects that employed the time of the House. The revised bills, continued from the last session, were still under discussion; but, after many had been disposed of, it was determined to appoint a second committee of revisors to complete an entire revision of the laws; , for in the interval of the first appointment of the revisors ten years had elapsed, and the legislation of that period required to be drafted into the Code; and Edmund Pendleton and George Wythe, two of the former revisors, and John Blair were appointed to perform the work. If no other record of the worth, the ability, and the sterling faith of the present Assembly existed than the Journal of the House of Delegates, the careful historian would pronounce with confidence on their just claims to the gratitude and veneration of posterity.
The leading topics of the session, however, which have sin- gled it out for a place in general history, were those pertaining to the Protestant Episcopal Church, and to the initiatory measures that led to the formation of. the present Federal Constitution. And first of the Church: At an early day petitions were pre- sented from various places complaining of the disposition of the churches and glebes, and praying for a repeal of the act to incorporate the Protestant Episcopal Church. Those in favor of a repeal and a redistribution of the property of the Church,
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whether we regard the number of the petitions or of those who signed them, greatly preponderated.151 The petitions, as they were presented, were referred to the Committee of the Whole. On the 2d of November the House went into committee on the subject, and, when the committee rose, a resolution was reported, and agreed to, that the committee be discharged from the fur- ther consideration of the petitions; which were ordered to lie on the table. On the 4th of December the petitions were called up and referred to the Committee of the Whole on the State of the Commonwealth. The subject was discussed in Committee of the Whole on the 5th, when Colonel Thruston, who had been, at the beginning of the Revolution, a minister of the Episcopal Church, reported three resolutions, the first of which recom- mended that a law ought to pass to empower all societies formed for the purposes of religion to hold such property as they are now possessed of, to acquire property of any kind, and to dis- pose thereof in any manner that may be agreeable to the said societies. The second recommended that so much of all acts of Parliament or acts of Assembly as prohibits religious socie-
151 As a majority of the churches and glebes, in number and value, were in Eastern Virginia, the subject of repeal and redistribution, in its geographical bearing, will be seen by referring to the places from which the petitions came : For a repeal, &c., were Louisa, Henrico, Westmoreland, Brunswick, Mecklenburg. Dinwiddie, New Kent, Glou- cester, Albemarle, Lancaster, Nansemond, King and Queen, Orange, Goochland, Pittsylvania, Hanover, Amelia, Halifax, King and Queen, Lunenburg, Augusta, Caroline, Essex, Westmoreland, Cumberland, Gloucester, King and Queen, Cumberland, Buckingham, Hanover, Gloucester, Powhatan, and Chesterfield. Against a repeal, &c., were Richmond county, York, Hanover, Louisa, Northampton, Southamp- ton, Stafford, King George, York, Elizabeth City, Hanover, Albemarle, and Louisa. The Baptist associations presented a memorial in favor of a repeal, and the Convention of the clerical and lay members of the Protestant Episcopal Church presented a memorial against it, which was followed by another from the standing committee of the last- named Church. When the name of a county appears more than once an additional petition was presented by it. I have given the names of the counties in the order in which they sent in their petitions. The latest was presented on the 5th of December. On the 30th of October the Presbyterian Church of Alexandria applied for an act of incorpo- ration, as the Otter Peak Presbyterian Church had done at the pre- vious session, but their petitions were rejected.
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ties from forming regulations for their own government, in any cases whatsoever, ought to be repealed, and that it ought to be declared that all such societies have full power to form regu- lations for their own government. The third recommended a repeal of the act to incorporate the Protestant Episcopal Church. These resolutions passed without a division, and a committee, consisting of Thruston, George Nicholas, 152 John Page, Corbin, Johnston, Archibald Stuart, Isaac Zane, Madison, Briggs, and Eggleston, was ordered to bring in bills in pursuance with the resolutions. The bill to repeal the act to incorporate the Church was duly presented, was read three several times on different days, and passed the House without a division. On the 9th it was returned from the Senate, with amendments, in which the House refused to concur, and from which, on the return of the bill, it receded. What those amendments were the Journal of neither House affords any means of determining. 153 It is singu- lar that, while the ayes and noes were frequently called during the session on comparatively trivial questions, none demanded . them on such a question as this.
The first two resolutions reported by the Committee of the Whole were just and proper. They served to carry out and enforce the doctrines of the act for establishing religious free- dom, and to extend to religious associations the protection and aid of legislation. But the passage of the bill to repeal the act incorporating the Episcopal Church was of doubtful right. This extraordinary act can only be accounted for on the ground of a compromise, or of a panic terror which seized upon the House. It might have been contended in debate that, at the same time the resolution recommending a repeal of the charter of the Church was adopted, another resolution authorizing the passage of all laws necessary to enable a religious society to hold and sell its property received the sanction of the House; and that the Episcopal Church, in losing its charter, which it held alone of all the religious sects, would lose nothing, while the repeal would not affect its title to property which it lawfully held. This
152 George Nicholas had reported the bill of the last session to repeal the charter of the Church.
153 The original engrossed bill, in the office of the Clerk of the House of Delegates, will settle the question.
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ground is not tenable unless it can be shown that the Church had approved it; but the memorials of its Convention and of its standing committee (which last was presented just before the resolution recommending the repeal was adopted), so far from approving such a policy, warmly protested against any action in the premises. If, then, there was a compromise in the House, as there probably was, it was a compromise to which the Church did not assent; and without that assent the act of repeal was manifestly unjust and unconstitutional. 154 It has never been alleged that the Episcopal Church had by any unlawful practice forfeited its charter; but even if it had, the mode of redress was not through the Legislature, but through the courts. On the other hand, some allowance should be made for the peculiar views in respect of the extent of the powers of the Legislature then prevalent. On the subject of charters the public jealousy in England and in the Colony for a century and a half then past was directed to the King, and not towards Parliament. The reckless mode of dealing with charters pursued by James the Second did more to weaken his hold upon the intelligent and religious people of England, and especially upon the Church of England, than any other course, which, under the guidance of evil councillors, and in pursuit of his mad scheme of converting England into a Catholic country, he was driven to adopt. The sanctity of charters became one of the slogans of the Revolution of 1688. It was specially dwelt upon in the memorial from The Hague, which prepared the British mind to accept of a new dynasty. But it was the annulment of charters by the King, and not by Parliament, that roused the fears of the English peo- ple. The King was the grantor of all charters, but he could not take them away. The authority of Parliament, however, was unrestricted. It could declare the throne vacant, and fill it at its discretion; and it would certainly have appeared to the states- men of 1688 the height of absurdity to deny to that body the right of amending or annulling a vicious charter which James
154 The fact that the ayes and noes were not called in any of the stages of the bill would seem to indicate some agreement between its friends and the friends of the Church, or that the friends of the Church seeing all contest hopeless, did not care to put their names on record for future animadversion.
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may have bestowed upon his minions. It was in this spirit that the General Assembly passed the bill to repeal the charter of the Episcopal Church, more especially as on the subject of charters the Constitution did not expressly prohibit their repeal. The customs and the laws of England from the time of King Wil- liam had justly great weight with our fathers. In their early troubles they had looked to the Convention Parliament of 1688 as a guide, and, in imitation of that body, had adjourned over from a convention to an ordinary Legislature. 155 It is true the Convention Parliament repealed no charters; but it is equally true that, if King James before his abdication had not, by recalling his new charters and by the restoration of the old, done the work for them, they would have done it for themselves. But, with all the allowances due from the habits and customs of Parliament, the repeal of the Church bill, even on the ground of compromise, when the Church proper was not a party, was indefensible.
Nor is the repeal more defensible on the ground of popular clamor. The voice of the people is truly the voice of God; but it must be uttered in that deliberate and constitutional way which the people themselves have prescribed. No statesman who consents at the bidding of the popular voice to violate vested rights should escape the serious animadversion of pos- terity. And this censure attaches with equal severity to the opponents as well as to the friends of repeal. No act of legisla- tion during the session appears more unanimous on the face of the Journal than the act repealing the charter of the Church. From first to last-from the day when the resolution recom- mending its repeal was reported from the Committee of the Whole to the passage of the bill through its several stages- there was not a single division in the House, either on its prin- ciple or on its details. All the members are equally responsible for its passage; while the conduct of the minority, if controlled by fear, is still more to be condemned and deplored. Failing to afford posterity the means of knowing, by the ordinary parlia- mentary signs, who were the supporters of the bill, its oppo-
156 I have already mentioned the fact that the Convention of May, 1776, which formed our first Constitution, became the first House of Delegates under that Constitution, without an appeal to the people.
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nents, if such there were, must share the blame with its friends. Moreover, the repeal of the act was a blunder. In the eye of the law it was a nullity. The great aim of those who desired the repeal was the confiscation of the churches and the glebes. Yet it was plain that, if the Church held its possessions lawfully, no act of Assembly, which merely deprived it of its corporate capacity, could rightfully take them away. The course which the Legislature ought to have pursued seems to be simple and obvious. The whole question of property belonged to the judiciary, and the Assembly might have performed its duty by referring the petitioners to the courts, or by instructing the Attorney-General or the solicitor to prepare for the courts a case which should determine the right of the Church to hold the property in question. On the other hand, the course of the Church on the repeal of its charter was equally obvious. Its friends ought to have pressed the bills carrying into effect the two first resolutions of the committee through the House, and thus placed the Church on a platform on which it could sustain itself in a court of justice; but so far from following up the recommendations of the committee, which were adopted by the House, they allowed them to sleep on the table. The Church should, then, have appealed to the courts, and we know, from what occurred when an appeal was ultimately made, what would have been the result. It would have protected itself from the worriment [sic], vexation, and spoliation of the ten or fifteen years that followed the repeal, and retained its property, if held law- fully, under the laws existing prior to the Declaration of Inde- pendence, or under the act of the October session of 1776, or under the act of its recent incorporation. And posterity would have had the satisfaction of knowing that the act of repeal was as inoperative as it was ill-timed and unjust.
The subject of Federal affairs will now claim our attention. On the 30th of October, 1786, the Speaker laid before the House of Delegates a letter from the commissioners appointed by the General Assembly at the last session to meet such commissioners as might be appointed by the other States in the Union, to take into consideration the commerce of the United States, with a copy of the proceedings of the meeting. 156 The letter and its
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