2. There was a process depending in the ordinary courts of justice, between two individuals of the names of Robinson and Fauntleroy, who were relations, of different descriptions, to one Robinson, a British subject, lately dead. Each party claimed a right to inherit the lands of the decedent according to the laws. Their right should by the constitution have been decided by the judiciary courts; and it was actually depending before them. One of the parties petitioned the Assembly (I think it was in the year 1782), who passed a law deciding the right in his favor. In the following year, a Frenchman, master of a vessel, entered into port without complying with the laws established in such cases, whereby he incurred the forfeitures of the law to any person who would sue for them. An individual instituted a legal process to recover these forfeitures according to the law of the land. The Frenchman petitioned the Assembly, who passed a law deciding the question of forfeiture in his favor. These acts are occasional repeals of that part of the constitution which forbids the same persons to exercise legislative and judiciary powers at the same time.
The Assembly is in the habitual exercise, during their sessions, of directing the Executive what to do. There are few pages of their journals which do not show proofs of this, and consequently instances of the legislative and executive powers exercised by the same persons at the same time. These things prove that it has been the uninterrupted opinion of every Assembly, from that which passed the ordinance called the constitution down to the present day, that their acts may control that ordinance, and, of course, that the State of Virginia has no fixed constitution at all.
[The succeeding observations were made by Mr. Jefferson on an article entitled "Etats Unis," prepared for the Encyclopedie Methodique, and submitted to him before its publication.]
Page 8. The malefactors sent to America were not sufficient in number to merit enumeration, as one class out of three which peopled America. It was at a late period of their history that this practice began. I have no book by me which enables me to point out the date of its commencement. But I do not think the whole number sent would amount to two thousand, and being principally men, eaten up with disease, they married seldom and propagated little. I do not suppose that themselves and their descendants are at present four thousand, which is little more than one thousandth part of the whole inhabitants.
Indented servants formed a considerable supply. These were poor Europeans, who went to America to settle themselves. If they could pay their passage, it was well. If not, they must find means of paying it. They were at liberty, therefore, to make an agreement with any person they chose, to serve him such a length of time as they agreed on, upon condition that he would repay to the master of the vessel the expenses of their passage. If, being foreigners, unable to speak the language, they did not know how to make a bargain for themselves, the captain of the vessel contracted for them with such persons as he could. This contract was by deed indented, which occasioned them to be called indented servants. Sometimes they were called redemptioners, because by their agreement with the master of the vessel, they could redeem themselves from his power by paying their passage, which they frequently effected by hiring themselves on their arrival, as is before mentioned. In some States I know that these people had a right of marrying themselves without their master's leave, and I did suppose they had that right everywhere. I did not know that in any of the States they demanded so much as a week for every day's absence without leave. I suspect this must have been at a very early period, while the governments were in the hands of the first emigrants, who, being mostly laborers, were narrow-minded and severe. I know that in Virginia the laws allowed their servitude to be protracted only two days for every one they were absent without leave. So mild was this kind of servitude, that it was very frequent for foreigners, who carried to America money enough not only to pay their passage, but to buy themselves a farm, to indent themselves to a master for three years for a certain sum of money, with a view to learn the husbandry of the country. I will here make a general observation. So desirous are the poor of Europe to get to America, where they may better their condition, that being unable to pay their passage, they will agree to serve two or three years on their arrival here, rather than not go. During the time of that service, they are better fed, better clothed, and have lighter labor, than while in Europe. Continuing to work for hire a few years longer, they buy a farm, marry, and enjoy all the sweets of a domestic society of their own. The American governments are censured for permitting this species of servitude, which lays the foundation of the happiness of these people. But what should these governments do? Pay the passage of all those who choose to go into their country? They are not able; nor were they able, do they think the purchase worth the price? Should they exclude these people from their shores? Those who know their situations in Europe and America, would not say that this is the alternative which humanity dictates. It is said that these people are deceived by those who carry them over. But this is done in Europe. How can the American governments prevent it? Should they punish the deceiver? It seems more incumbent on the European government, where the act is done, and where a public injury is sustained from it. However, it is only in Europe that this deception is heard of. The individuals are generally satisfied in America with their adventure, and very few of them wish not to have made it. I must add that the Congress have nothing to do with this matter. It belongs to the legislatures of the several States.
Page 26. "Une puissance, en effet," &c. The account of the settlement of the colonies, which precedes this paragraph, shows that that settlement was not made by public authority, or at the public expense of England; but by the exertions, and at the expense of individuals. Hence it happened, that their constitutions were not formed systematically, but according to the circumstances which happened to exist in each. Hence, too, the principles of the political connection between the old and new countries, were never settled. That it would have been advantageous to have settled them, is certain; and, particularly, to have provided a body which should decide, in the last resort, all cases wherein both parties were interested. But it is not certain that that right would have been given, or ought to have been given to the Parliament; much less, that it resulted to the Parliament, without having been given to it expressly. Why was it necessary that there should have been a body to decide in the last resort? Because, it would have been for the good of both parties. But this reason shows it ought not to have been the Parliament, since that would have exercised it for the good of one party only.
Page 105. As to the change of the 8th article of Confederation, for quoting requisitions of money on the States.
By a report of the Secretary of Congress, dated January the 4th, 1786, eight States had then acceded to the proposition; to wit, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, and North Carolina.
Congress, on the 18th of April, 1783, recommended to the States to invest them with a power, for twenty-five years, to levy an impost of five per cent. on all articles imported from abroad. New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina, had complied with this, before the 4th of January, 1786. Maryland had passed an act for the same purpose; but, by a mistake in referring to the date of the recommendation of Congress, the act failed of its effect. This was therefore to be rectified. Since the 4th of January, the public papers tell us that Rhode Island has complied fully with this recommendation.
It remains still for New York and Georgia to do it. The exportations of America, which are tolerably well known, are the best measure for estimating the importations. These are probably worth about twenty millions of dollars, annually. Of course, this impost will pay the interest of a debt to that amount. If confined to the foreign debt, it will pay the whole interest of that, and sink half a million of the capital, annually. The expenses of collecting this impost, will probably be six per cent. on its amount, this being the usual expense of collection in the United States. This will be sixty thousand dollars.