Now what was the opinion to which this was opposed? Several judges of the General Government declared that "the common law of England is the unwritten law of the United States in their national and federal capacity." A State judge, in a printed work, lays it down as "certainly wrong to say that the judiciary power of the nation can exercise no authority but what depends for its principle on acts of the national legislature." And then quoting the preamble to the Constitution of the United States, which says that its object is "to insure domestic tranquillity, promote the general welfare," &c., he adds, that "what is here expressed is the common law of the whole country," and that "whatever is in opposition to it, whether treason, insurrection, sedition, murder, riot, assaults, batteries, thefts or robberies, may be punished as crimes, independent of any act of Congress." And opinions equivalent to this were declared by one party on the floor of Congress. This is the doctrine which the republicans declared heretical. They deny that Congress can pass any law not authorized by the Constitution, and that the judges can act on any law not authorized by Congress, or by the Constitution in very direct terms.
If the true doctrine then be, that certain portions of the common and statute law of England be in force in the different States by virtue of the adoption of that State, and in the federal courts of the same State by virtue of the adoption by Congress of the laws of that State within its limits, then whenever a case is presented to a federal court, they are to ask themselves the following questions:
1. Is this case within any of the definitions of jurisdiction given by the Constitution to the General Government? If it be decided that it is, then
2. Has Congress by any positive statute assumed cognizance of this case as permitted them by the Constitution? To determine this question, the judge must first look into the statutes of Congress generally; if he finds it not there, he must look into the laws of the State, as well as that portion of the English code which the State may have adopted, as the acts passed specially by the legislature. If the case be actually found provided for in these laws, another question still remains, viz.:
3. Is the law of the State applicable to the analogous case of the General Government? for it may happen that a law of the State, adapted perfectly to its own organization and local circumstances, may not tally with the different organization or circumstances of the federal government. If the difference be such as to defeat the application, it must be considered as a case unprovided for by Congress, and not cognizable in their courts. Just so parts of the common or statute law of England are found by the State judges inapplicable to their State from a difference of circumstance. These differences of circumstance will be shaded off from nothing to direct inconsistence, and it will be only by many decisions on a great variety of cases that the line will at length be drawn.
Let us apply these questions to Hardin's case, which is simply this: Congress, by an express statute, 1802, c. 13, § 6, have made the murder of an Indian within the territory of the United States punishable by death. A murder is committed on an Indian in that territory. The murderers fly to Kentucky. They are demanded by the Governor of Indiana of the Governor of Kentucky; under whose authority our officer attempting to take them, they are protected by Hardin and others in arms.
1. Is this case within the jurisdiction of Congress? Answer. Congress having a right "to make all rules and regulations respecting the territory of the United States," have declared this to be a case of murder. As they can "make all laws necessary and proper for carrying their powers into execution," they can make the protecting a murderer criminal in any part of the United States.
2. Has Congress assumed cognizance of the offence of Hardin? We must first examine whether the act of Congress, 1790, c. 9, § 22, takes in this offence. Then whether the laws of Kentucky, common, statute, or State law, as adopted by Congress, comprehend this offence.
3. Whether any difference of organization or other circumstance renders the law of Kentucky inapplicable to this offence, can be decided by those only who are particularly acquainted with that law.
XLVI.
Plan for Elementary Schools.
Poplar Forest, Sept 9th, 1817.
Dear Sir,—I promised you that I would put into the form of a bill my plan of establishing the Elementary Schools, without taking a cent from the Literary fund. I have had leisure at this place, to do this, and now send you the result. If twelve or fifteen hundred schools are to be placed under one general administration, an attention so divided will amount to a dereliction of them to themselves. It is surely better, then, to place each school at once under the care of those most interested in its conduct. In this way the Literary fund is left untouched to complete at once the whole system of education, by establishing a college in every district of about eighty miles square, for the second grade of education, to wit: languages, ancient and modern, and for the third grade a single University, in which the sciences shall be taught in their highest degree.
I should apologize, perhaps, for the style of this bill. I dislike the verbose and intricate style of the English statutes, and in our revised code I endeavored to restore it to the simple one of the ancient statutes, in such original bills as I drew in that work. I suppose the reformation has not been acceptable, as it has been little followed. You, however, can easily correct this bill to the taste of my brother lawyers, by making every other word a "said" or "aforesaid," and saying everything over two or three times, so that nobody but we of the craft can untwist the diction, and find out what it means; and that, too, not so plainly but that we may conscientiously divide one half on each side. Mend it, therefore, in form and substance to the orthodox taste, and make it what it should be; or, if you think it radically wrong, try something else, and let us make a beginning in some way. No matter how wrong, experience will amend it as we go along, and make it effectual in the end.
I shall see you of course at our stated visitation, and hope all the gentlemen will consider Monticello as the rendezvous of the preceding day or evening.
I salute you with friendship and respect.
An Act for establishing Elementary Schools.
1. Be it enacted by the General Assembly of Virginia, that at the first session of the Superior Court in every county within this commonwealth, next ensuing the passage of this act, the judge thereof shall appoint three discreet and well-informed persons, residents of the county, and not being ministers of the gospel[22] of any denomination, to serve as visitors of the Elementary Schools in the said county; of which appointment the sheriff shall, within fifteen days thereafter deliver a certificate, under the hand of the clerk of the said court, to each of the persons so appointed.
2. The said visitors shall meet at the court-house of their county on the first county court day after they shall have received notice of their appointment, and afterwards at such times and places as they, or any two of them, with reasonable notice to the third, shall have agreed; and shall proceed to divide their county into wards,[23] by metes and bounds so designated as to comprehend each, about the number of militia sufficient for a company, and so also as not to divide, and throw into different wards[24] the lands of any one person held in one body; which division into wards shall, within six months from the date of their appointment, be completely designated, published, and reported, by their metes and bounds, to the office of the clerk of the Superior Court, there to be recorded, subject, however, to such alterations, from time to time afterwards, as changes of circumstances shall, in the opinion of the said visitors or their successors, with the approbation of the said court, render expedient.
3. The original division into wards being made, the visitors shall appoint days for the first meeting of every ward, at such place as they shall name within the same, of which appointment notice shall be given at least two weeks before the day of meeting, by advertisement at some public place within the ward, requiring every free, white male citizen, of full age, resident within the ward, to meet at the place, and by the hour of twelve of the day so appointed, at which meeting some one of the visitors shall also attend, and a majority of the said warders being in attendance, the visitor present shall propose to them to decide by a majority of their votes,—1. The location of a school-house for the ward, and a dwelling-house for the teacher, (the owner of the ground consenting thereto.) 2. The size and structure of the said houses; and 3. Whether the same shall be built by the joint labor of the warders, or by their pecuniary contributions; and also 4. To elect by a plurality of their votes a warden, resident, who shall direct and superintend the said buildings, and be charged with their future care.
4. And if they decide that the said buildings[25] shall be erected by the joint labor of the warders, then all persons within the said ward liable to work in the highways, shall attend at the order of the warden, and, under his direction, shall labor thereon until completed, under the same penalties as provided by law to enforce labor on the highways. And if they decide on erection by pecuniary contributions, the residents and owners of property within the ward shall contribute toward the cost, each in proportion to the taxes they last paid to the State for their persons and for the same property: of which the sheriff or commissioners shall furnish a statement to the warden, who, according to the ratio of that statement, shall apportion and assess the quota of contribution for each, and be authorized to demand, receive, and apply the same to the purposes of the contribution, and to render account thereof, as in all other his pecuniary transactions for the school, to the visitors; and on failure of payment by any contributor, the sheriff, on the order of the warden, shall collect and render the same under like powers and regulations as provided for the collection of the public taxes. And in every case it shall be the duty of the warden to have the buildings completed within six months from the date of his election.
5. It shall be the duty of the said visitors to seek and to employ for every ward,[26] whenever the number and ages of its children require it, a person of good moral character, qualified to teach reading, writing, numeral arithmetic and geography, whose subsistence shall be furnished by the residents and proprietors of the ward, either in money or in kind, at the choice of each contributor, and in the ratio of their public taxes, to be apportioned and levied as on the failures before provided for. The teacher shall also have the use of the house and accommodations provided for him, and shall moreover receive annually such standing wages as the visitors shall have determined to be proportioned on the residents and proprietors of the ward, and to be paid, levied and applied as before provided in other cases of pecuniary contribution. At this school shall be received and instructed gratis, every infant of competent age who has not already had three years schooling. And it is declared and enacted, that no person unborn or under the age of twelve years at the passing of this act, and who is compos mentis, shall, after the age of fifteen years, be a citizen of this commonwealth until he or she can read readily in some tongue, native or acquired.
6. To keep up a constant succession of visitors, the judge of the Superior Court of every county shall at his first session in every bissextile year, appoint visitors as before characterized, either the same or others, at his discretion. And in case of the death or resignation of any visitor during the term of his appointment, or of his removal by the said judge for good cause, moral or physical, he shall appoint another to serve until the next bissextile appointment. Which visitors shall have their first meeting at their court house on the county court day next ensuing their appointment, and afterwards at such times and places as themselves or any two of them with reasonable notice to the third shall agree. But the election of wardens shall be annually, at the first meeting of the ward after the month of March, until which election the warden last elected shall continue in office.
7. All ward meetings shall be at their school house, and on a failure of the meeting of a majority of the wardens on the call of a visitor, or of their warden, such visitor or warden may call another meeting.
8. At all times when repairs or alterations of the buildings before provided for shall be wanting, it shall be the duty of the warden or of a visitor, to call a ward meeting and to take the same measures towards such repairs or alterations as are herein before authorized for the original buildings.
9. When, on the application of any warden, authorized thereto by the vote of his ward, the judge of the Superior Court shall be of opinion that the contributors of any particular ward are disproportionably and oppressively overburthened with an unusual number of children of non-contributors of their ward, he may direct an order to the county court to assess in their next county levy the whole or such part of the extra burthen as he shall think excessive and unreasonable, to be paid to the warden for its proper use, to which order the said county court is required to conform.
10. The said teachers shall, in all things relating to the education and government of their pupils, be under the direction and control of the visitors; but no religious reading, instruction or exercise, shall be prescribed or practiced inconsistent with the tenets of any religious sect or denomination.
11. Some one of the visitors, once in every year at least, shall visit the several schools: shall inquire into the proceedings and practices thereat: shall examine the progress of the pupils, and give to those who excel in reading, in writing, in arithmetic, or in geography, such honorary marks and testimonies of approbation, as may encourage and excite to industry and emulation.
12. All decisions and proceedings of the visitors relative to the original designation of wards at any time before the buildings are begun, or changes of wards at any time after, to the quantum of subsistence, or wages allowed to the teacher, and to the rules prescribed to him for the education and government of his pupils, shall be subject to be controlled and corrected by the judge of the Superior Court of the county, on the complaint of any individual aggrieved or interested.
XLVII.
The solemn Declaration and Protest of the Commonwealth of
Virginia, on the principles of the Constitution of the United
States of America, and on the violations of them.
We, the General Assembly of Virginia, on behalf, and in the name of the people thereof, do declare as follows:
The States in North America which confederated to establish their independence of the government of Great Britain, of which Virginia was one, became, on that acquisition, free and independent States, and as such, authorized to constitute governments, each for itself, in such form as it thought best.
They entered into a compact, (which is called the Constitution of the United States of America,) by which they agreed to unite in a single government as to their relations with each other, and with foreign nations, and as to certain other articles particularly specified. They retained at the same time, each to itself, the other rights of independent government, comprehending mainly their domestic interests.
For the administration of their federal branch, they agreed to appoint, in conjunction, a distinct set of functionaries, legislative, executive, and judiciary, in the manner settled in that compact: while to each, severally, and of course, remained its original right of appointing, each for itself, a separate set of functionaries, legislative, executive, and judiciary, also, for administering the domestic branch of their respective governments.
These two sets of officers, each independent of the other, constitute thus a whole of government, for each State separately; the powers ascribed to the one, as specifically made federal, exercised over the whole, the residuary powers, retained to the other, exercisable exclusively over its particular State, foreign herein, each to the others, as they were before the original compact.
To this construction of government and distribution of its powers, the commonwealth of Virginia does religiously and affectionately adhere, opposing, with equal fidelity and firmness, the usurpation of either set of functionaries on the rightful powers of the other.
But the federal branch has assumed in some cases, and claimed in others, a right of enlarging its own powers by constructions, inferences, and indefinite deductions from those directly given, which this assembly does declare to be usurpations of the powers retained to the independent branches, mere interpolations into the compact, and direct infractions of it.
They claim, for example, and have commenced the exercise of a right to construct roads, open canals, and effect other internal improvements within the territories and jurisdictions exclusively belonging to the several States, which this assembly does declare has not been given to that branch by the constitutional compact, but remains to each State among its domestic and unalienated powers, exercisable within itself and by its domestic authorities alone.
This assembly does further disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defence and general welfare of the United States, has given them thereby a power to do whatever they may think, or pretend, would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare, by the various acts of power therein specified and delegated to them, and by no others.
Nor is it admitted, as has been said, that the people of these States, by not investing their federal branch with all the means of bettering their condition, have denied to themselves any which may effect that purpose; since, in the distribution of these means they have given to that branch those which belong to its department, and to the States have reserved separately the residue which belong to them separately. And thus by the organization of the two branches taken together, have completely secured the first object of human association, the full improvement of their condition, and reserved to themselves all the faculties of multiplying their own blessings.
Whilst the General Assembly thus declares the rights retained by the States, rights which they have never yielded, and which this State will never voluntarily yield, they do not mean to raise the banner of disaffection, or of separation from their sister States, co-parties with themselves to this compact. They know and value too highly the blessings of their Union as to foreign nations and questions arising among themselves, to consider every infraction as to be met by actual resistance. They respect too affectionately the opinions of those possessing the same rights under the same instrument, to make every difference of construction a ground of immediate rupture. They would, indeed, consider such a rupture as among the greatest calamities which could befall them; but not the greatest. There is yet one greater, submission to a government of unlimited powers. It is only when the hope of avoiding this shall become absolutely desperate, that further forbearance could not be indulged. Should a majority of the co-parties, therefore, contrary to the expectation and hope of this assembly, prefer, at this time, acquiescence in these assumptions of power by the federal member of the government, we will be patient and suffer much, under the confidence that time, ere it be too late, will prove to them also the bitter consequences in which that usurpation will involve us all. In the meanwhile, we will breast with them, rather than separate from them, every misfortune, save that only of living under a government of unlimited powers. We owe every other sacrifice to ourselves, to our federal brethren, and to the world at large, to pursue with temper and perseverance the great experiment which shall prove that man is capable of living in society, governing itself by laws self-imposed, and securing to its members the enjoyment of life, liberty, property, and peace; and further to show, that even when the government of its choice shall manifest a tendency to degeneracy, we are not at once to despair but that the will and the watchfulness of its sounder parts will reform its aberrations, recall it to original and legitimate principles, and restrain it within the rightful limits of self-government. And these are the objects of this Declaration and Protest.
Supposing then, that it might be for the good of the whole, as some of its co-States seem to think, that the power of making roads and canals should be added to those directly given to the federal branch, as more likely to be systematically and beneficially directed, than by the independent action of the several States, this commonwealth, from respect to these opinions, and a desire of conciliation with its co-States, will consent, in concurrence with them, to make this addition, provided it be done regularly by an amendment of the compact, in the way established by that instrument, and provided also, it be sufficiently guarded against abuses, compromises, and corrupt practices, not only of possible, but of probable occurrence.
And as a further pledge of the sincere and cordial attachment of this commonwealth to the union of the whole, so far as has been consented to by the compact called "The Constitution of the United States of America," (constructed according to the plain and ordinary meaning of its language, to the common intendment of the time, and of those who framed it;) to give also to all parties and authorities, time for reflection and for consideration, whether, under a temperate view of the possible consequences, and especially of the constant obstructions which an equivocal majority must ever expect to meet, they will still prefer the assumption of this power rather than its acceptance from the free will of their constituents; and to preserve peace in the meanwhile, we proceed to make it the duty of our citizens, until the legislature shall otherwise and ultimately decide, to acquiesce under those acts of the federal branch of our government which we have declared to be usurpations, and against which, in point of right, we do protest as null and void, and never to be quoted as precedents of right.
We therefore do enact, and be it enacted by the General Assembly of Virginia, that all citizens of this commonwealth, and persons and authorities within the same, shall pay full obedience at all times to the acts which may be passed by the Congress of the United States, the object of which shall be the construction of post roads, making canals of navigation, and maintaining the same in any part of the United States, in like manner as if said acts were, totidem verbis, passed by the Legislature of this Commonwealth.
XLVIII.
Thoughts on Lotteries. February, 1826.
It is a common idea that games of chance are immoral. But what is chance? Nothing happens in this world without a cause. If we know the cause, we do not call it chance; but if we do not know it, we say it was produced by chance. If we see a loaded die turn its lightest side up, we know the cause, and that it is not an effect of chance; but whatever side an unloaded die turns up, not knowing the cause, we say it is the effect of chance. Yet the morality of a thing cannot depend on our knowledge or ignorance of its cause. Not knowing why a particular side of an unloaded die turns up, cannot make the act of throwing it, or of betting on it, immoral. If we consider games of chance immoral, then every pursuit of human industry is immoral; for there is not a single one that is not subject to chance, not one wherein you do not risk a loss for the chance of some gain. The navigator, for example, risks his ship in the hope (if she is not lost in the voyage) of gaining an advantageous freight. The merchant risks his cargo to gain a better price for it. A landholder builds a house on the risk of indemnifying himself by a rent. The hunter hazards his time and trouble in the hope of killing game. In all these pursuits, you stake some one thing against another which you hope to win. But the greatest of all gamblers is the farmer. He risks the seed he puts into the ground, the rent he pays for the ground itself, the year's labor on it, and the wear and tear of his cattle and gear, to win a crop, which the chances of too much or too little rain, and general uncertainties of weather, insects, waste, &c., often make a total or partial loss. These, then, are games of chance. Yet so far from being immoral, they are indispensable to the existence of man, and every one has a natural right to choose for his pursuit such one of them as he thinks most likely to furnish him subsistence. Almost all these pursuits of chance produce something useful to society. But there are some which produce nothing, and endanger the well-being of the individuals engaged in them, or of others depending on them. Such are games with cards, dice, billiards, &c. And although the pursuit of them is a matter of natural right, yet society, perceiving the irresistible bent of some of its members to pursue them, and the ruin produced by them to the families depending on these individuals, consider it as a case of insanity, quoad hoc, step in to protect the family and the party himself, as in other cases of insanity, infancy, imbecility, &c., and suppress the pursuit altogether, and the natural right of following it. There are some other games of chance, useful on certain occasions, and injurious only when carried beyond their useful bounds. Such are insurances, lotteries, raffles, &c. These they do not suppress, but take their regulation under their own discretion. The insurance of ships on voyages is a vocation of chance, yet useful, and the right to exercise it therefore is left free. So of houses against fire, doubtful debts, the continuance of a particular life, and similar cases. Money is wanting for a useful undertaking, as a school, &c., for which a direct tax would be disapproved. It is raised therefore by a lottery, wherein the tax is laid on the willing only, that is to say, on those who can risk the price of a ticket without sensible injury for the possibility of a higher prize. An article of property, insusceptible of division at all, or not without great diminution of its worth, is sometimes of so large value as that no purchaser can be found while the owner owes debts, has no other means of payment, and his creditors no other chance of obtaining it but by its sale at a full and fair price. The lottery is here a salutary instrument for disposing of it, where many run small risks for the chance of obtaining a high prize. In this way the great estate of the late Colonel Byrd (in 1756) was made competent to pay his debts, which, had the whole been brought into the market at once, would have overdone the demand, would have sold at half or quarter the value, and sacrificed the creditors, half or three-fourths of whom would have lost their debts. This method of selling was formerly very much resorted to, until it was thought to nourish too much a spirit of hazard. The legislature were therefore induced not to suppress it altogether, but to take it under their own special regulation. This they did for the first time by their act of 1769, c. 17, before which time every person exercised the right freely; and since which time, it is made unlawful but when approved and authorized by a special act of the legislature.
Since then this right of sale, by way of lottery, has been exercised only under the jurisdiction of the legislature. Let us examine the purposes for which they have allowed it in practice, not looking beyond the date of our independence.
1. It was for a long time an item of the standing revenue of the State.
| 1813. c. 1, § 3. | An act imposing taxes for the support of government, and c. 2, § 10. |
| 1814. Dec. c. 1, § 3. | |
| 1814. Feb. c. 1, § 3. | |
| 1818. c. 1, § 1. | |
| 1819. c. 1. | |
| 1820. c. 1. |
This, then, is a declaration by the nation, that an act was not immoral, of which they were in the habitual use themselves as a part of the regular means of supporting the government; the tax on the vender of tickets was their share of the profits, and if their share was innocent, his could not be criminal.
2. It has been abundantly permitted to raise money by lottery for the purposes of schools; and in this, as in many other cases, the lottery has been permitted to retain a part of the money (generally from ten to fifteen per cent.) for the use to which the lottery has been applied. So that while the adventurers paid one hundred dollars for tickets, they received back eighty-five or ninety dollars only in the form of prizes, the remaining ten or fifteen being the tax levied on them, with their own consent. Examples are,
| 1784. c. 34. | Authorizing the city of Williamsburg to raise £2,000 for a grammar school. | |
| 1789. c. 68. | For Randolph Academy, £1,000. | |
| 1789. c. 73. | For Fauquier Academy, £500. | |
| c. 74. | For the Fredericksburg Academy, £4,000. | |
| 1790. c. 46. | For the Transylvanian Seminary, £500. | |
| For the Southampton Academy, £300. | ||
| 1796. c. 82. | For the New London Academy. | }[27] |
| 1803. c. 49. | For the Fredericksburg Charity School. | } |
| c. 50. | For finishing the Strasburg Seminary. | } |
| c. 58. | For William and Mary College. | } |
| c. 62. | For the Bannister Academy. | } |
| c. 79. | For the Belfield Academy. | } |
| c. 82. | For the Petersburg Academy. | } |
| 1804. c. 40. | For the Hotsprings Seminary. | } |
| c. 76. | For the Stevensburg Academy. | } |
| c. 100. | For William and Mary College. | } |
| 1805. c. 24. | For the Rumford Academy. | } |
| 1812. c. 10. | For the Literary Fund. To sell the privilege for $30,000 annually, for seven years. | |
| 1816. c. 80. | For Norfolk Academy, $12,000. | |
| Norfolk Female Society, $2,000. | ||
| Lancastrian School, $6,000. |
3. The next object of lotteries has been rivers.
| 1790. c. 46. | For a bridge between Gosport and Portsmouth, £400. |
| 1796. c. 83. | For clearing Roanoke River. |
| 1804. c. 62. | For clearing Quantico Creek. |
| 1805. c. 42. | For a toll bridge over Cheat River. |
| 1816. c. 49. | For the Dismal Swamp, $50,000. |
4. For roads.
5. Lotteries for the benefit of counties.
| 1796. c. 78. | To authorize a lottery in the county of Shenandoah. |
| c. 84. | To authorize a lottery in the county of Gloucester. |
6. Lotteries for the benefit of towns.
| 1782. c. 31. | Richmond, for a bridge over Shockoe, amount not limited. |
| 1789. c. 75. | Alexandria, to pave its streets, £1,500. |
| 1790. c. 46. | do. do. £5,000. |
| 1796. c. 79. | Norfolk, one or more lotteries authorized. |
| c. 81. | Petersburg, a lottery authorized. |
| 1803. c. 12. | Woodstock, do. |
| c. 48. | Fredericksburg, for improving its main street. |
| c. 73. | Harrisonburg, for improving its streets. |
7. Lotteries for religious congregations.
| 1785. c. 111. | Completing a church in Winchester. |
| For rebuilding a church in the parish of Elizabeth River. | |
| 1791. c. 69. | For the benefit of the Episcopal society. |
| 1790. c. 46. | For building a church in Warminster, £200. |
| For building a church in Halifax, £200. | |
| For building a church in Alexandria, £500. | |
| For building a church in Petersburg, £750. | |
| For building a church in Shepherdstown, £250. |
8. Lotteries for private societies.
| 1790. c. 46. | For the Amicable Society in Richmond, £1,000. |
| 1791. c. 70. | For building a Freemason's Hall in Charlotte, £750. |
9. Lotteries for the benefit of private individuals. [To raise money for them.]
| 1796. c. 80. | For the sufferers by fire in the town of Lexington. |
| 1781. c. 6. | For completing titles under Byrd's lottery. |
| 1790. c. 46. | To erect a paper mill in Staunton, £300. |
| To raise £2,000 for Nathaniel Twining. | |
| 1791. c. 73. | To raise £4,000 for William Tatham, to enable him to complete his geographical work. |
| To enable —— to complete a literary work.[28] |
We have seen, then, that every vocation in life is subject to the influence of chance; that so far from being rendered immoral by the admixture of that ingredient, were they abandoned on that account, man could no longer subsist; that, among them, every one has a natural right to choose that which he thinks most likely to give him comfortable subsistence; but that while the greater number of these pursuits are productive of something which adds to the necessaries and comforts of life, others again, such as cards, dice, &c., are entirely unproductive, doing good to none, injury to many, yet so easy, and so seducing in practice to men of a certain constitution of mind, that they cannot resist the temptation, be the consequences what they may; that in this case, as in those of insanity, idiocy, infancy, &c., it is the duty of society to take them under its protection, even against their own acts, and to restrain their right of choice of these pursuits, by suppressing them entirely; that there are others, as lotteries particularly, which, although liable to chance also, are useful for many purposes, and are therefore retained and placed under the discretion of the Legislature, to be permitted or refused according to the circumstances of every special case, of which they are to judge; that between the years 1782 and 1820, a space of thirty-eight years only, we have observed seventy cases, where the permission of them has been found useful by the Legislature, some of which are in progress at this time. These cases relate to the emolument of the whole State, to local benefits of education, of navigation, of roads, of counties, towns, religious assemblies, private societies, and of individuals under particular circumstances which may claim indulgence or favor. The latter is the case now submitted to the Legislature, and the question is, whether the individual soliciting their attention, or his situation, may merit that degree of consideration which will justify the Legislature in permitting him to avail himself of the mode of selling by lottery, for the purpose of paying his debts.
That a fair price cannot be obtained by sale in the ordinary way, and in the present depressed state of agricultural industry, is well known. Lands in this State will now sell for more than a third or fourth of what they would have brought a few years ago, perhaps at the very time of the contraction of the debts for which they are now to be sold. The low price in foreign markets, for a series of years past, of agricultural produce, of wheat generally, of tobacco most commonly, and the accumulation of duties on the articles of consumption not produced within our State, not only disable the farmer or planter from adding to his farm by purchase, but reduces him to sell his own, and remove to the western country, glutting the market he leaves, while he lessens the number of bidders. To be protected against this sacrifice is the object of the present application, and whether the applicant has any particular claim to this protection, is the present question.
Here the answer must be left to others. It is not for me to give it. I may, however, more readily than others, suggest the offices in which I have served. I came of age in 1764, and was soon put into the nomination of justice of the county in which I live, and at the first election following I became one of its representatives in the Legislature.
I was thence sent to the old Congress.
Then employed two years with Mr. Pendleton and Mr. Wythe, on the revisal and reduction to a single code of the whole body of the British statutes, the acts of our Assembly, and certain parts of the common law.
Then elected Governor.
Next to the Legislature, and to Congress again.
Sent to Europe as Minister Plenipotentiary.
Appointed Secretary of State to the new government.
Elected Vice-President, and
President. And lastly, a Visitor and Rector of the University. In these different offices, with scarcely any interval between them, I have been in the public service now sixty-one years; and during the far greater part of the time, in foreign countries or in other States. Every one knows how inevitably a Virginia estate goes to ruin, when the owner is so far distant as to be unable to pay attention to it himself; and the more especially, when the line of his employment is of a character to abstract and alienate his mind entirely from the knowledge necessary to good, and even to saving management.
If it were thought worth while to specify any particular services rendered, I would refer to the specification of them made by the Legislature itself in their Farewell Address, on my retiring from the Presidency, February, 1809. [This will be found in 2 Pleasant's Collection, page 144.] There is one, however, not therein specified, the most important in its consequences, of any transaction in any portion of my life; to wit, the head I personally made against the federal principles and proceedings, during the administration of Mr. Adams. Their usurpations and violations of the constitution at that period, and their majority in both Houses of Congress, were so great, so decided, and so daring, that after combating their aggressions, inch by inch, without being able in the least to check their career, the republican leaders thought it would be best for them to give up their useless efforts there, go home, get into their respective Legislatures, embody whatever of resistance they could be formed into, and if ineffectual, to perish there as in the last ditch. All, therefore, retired, leaving Mr. Gallatin alone in the House of Representatives, and myself in the Senate, where I then presided as Vice-President. Remaining at our posts, and bidding defiance to the brow beatings and insults by which they endeavored to drive us off also, we kept the mass of republicans in phalanx together, until the Legislature could be brought up to the charge; and nothing on earth is more certain, than that if myself particularly, placed by my office of Vice-President at the head of the republicans, had given way and withdrawn from my post, the republicans throughout the Union would have given up in despair, and the cause would have been lost forever. By holding on, we obtained time for the Legislature to come up with their weight; and those of Virginia and Kentucky particularly, but more especially the former, by their celebrated resolutions, saved the constitution at its last gasp. No person who was not a witness of the scenes of that gloomy period, can form any idea of the afflicting persecutions and personal indignities we had to brook. They saved our country however. The spirits of the people were so much subdued and reduced to despair by the X Y Z imposture, and other stratagems and machinations, that they would have sunk into apathy and monarchy, as the only form of government which could maintain itself.
If Legislative services are worth mentioning, and the stamp of liberality and equality, which was necessary to be imposed on our laws in the first crisis of our birth as a nation, was of any value, they will find that the leading and most important laws of that day were prepared by myself, and carried chiefly by my efforts; supported, indeed, by able and faithful coadjutors from the ranks of the House, very effective as seconds, but who would not have taken the field as leaders.
The prohibition of the further importation of slaves was the first of these measures in time.
This was followed by the abolition of entails, which broke up the hereditary and high-handed aristocracy, which, by accumulating immense masses of property in single lines of families, had divided our country into two distinct orders, of nobles and plebeians.
But further to complete the equality among our citizens so essential to the maintenance of republican government, it was necessary to abolish the principle of primogeniture. I drew the law of descents, giving equal inheritance to sons and daughters, which made a part of the revised code.
The attack on the establishment of a dominant religion, was first made by myself. It could be carried at first only by a suspension of salaries for one year, by battling it again at the next session for another year, and so from year to year, until the public mind was ripened for the bill for establishing religious freedom, which I had prepared for the revised code also. This was at length established permanently, and by the efforts chiefly of Mr. Madison, being myself in Europe at the time that work was brought forward.
To these particular services, I think I might add the establishment of our University, as principally my work, acknowledging at the same time, as I do, the great assistance received from my able colleagues of the Visitation. But my residence in the vicinity threw, of course, on me the chief burthen of the enterprise, as well of the buildings as of the general organization and care of the whole. The effect of this institution on the future fame, fortune and prosperity of our country, can as yet be seen but at a distance. But an hundred well-educated youths, which it will turn out annually, and ere long, will fill all its offices with men of superior qualifications, and raise it from its humble state to an eminence among its associates which it has never yet known; no, not in its brightest days. That institution is now qualified to raise its youth to an order of science unequalled in any other State; and this superiority will be the greater from the free range of mind encouraged there, and the restraint imposed at other seminaries by the shackles of a domineering hierarchy, and a bigoted adhesion to ancient habits. Those now on the theatre of affairs will enjoy the ineffable happiness of seeing themselves succeeded by sons of a grade of science beyond their own ken. Our sister States will also be repairing to the same fountains of instruction, will bring hither their genius to be kindled at our fire, and will carry back the fraternal affections which, nourished by the same alma mater, will knit us to them by the indissoluble bonds of early personal friendships. The good Old Dominion, the blessed mother of us all, will then raise her head with pride among the nations, will present to them that splendor of genius which she has ever possessed, but has too long suffered to rest uncultivated and unknown, and will become a centre of ralliance to the States whose youth she has instructed, and, as it were, adopted.
I claim some share in the merits of this great work of regeneration. My whole labors, now for many years, have been devoted to it, and I stand pledged to follow it up through the remnant of life remaining to me. And what remuneration do I ask? Money from the treasury? Not a cent. I ask nothing from the earnings or labors of my fellow citizens. I wish no man's comforts to be abridged for the enlargement of mine. For the services rendered on all occasions, I have been always paid to my full satisfaction. I never wished a dollar more than what the law had fixed on. My request is, only to be permitted to sell my own property freely to pay my own debts. To sell it, I say, and not to sacrifice it, not to have it gobbled up by speculators to make fortunes for themselves, leaving unpaid those who have trusted to my good faith, and myself without resource in the last and most helpless stage of life. If permitted to sell it in a way which will bring me a fair price, all will be honestly and honorably paid, and a competence left for myself, and for those who look to me for subsistence. To sell it in a way which will offend no moral principle, and expose none to risk but the willing, and those wishing to be permitted to take the chance of gain. To give me, in short, that permission which you often allow to others for purposes not more moral.
Will it be objected, that although not evil in itself, it may, as a precedent, lead to evil? But let those who shall quote the precedent bring their case within the same measure. Have they, as in this case, devoted three-score years and one of their lives, uninterruptedly, to the service of their country? Have the times of those services been as trying as those which have embraced our Revolution, our transition from a colonial to a free structure of government? Have the stations of their trial been of equal importance? Has the share they have borne in holding their new government to its genuine principles, been equally marked? And has the cause of the distress, against which they seek a remedy, proceeded, not merely from themselves, but from errors of the public authorities, disordering the circulating medium, over which they had no control, and which have, in fact, doubled and trebled debts, by reducing, in that proportion, the value of the property which was to pay them? If all these circumstances, which characterize the present case, have taken place in theirs also, then follow the precedent. Be assured, the cases will be so rare as to produce no embarrassment, as never to settle into an injurious habit. The single feature of a sixty years' service, as no other instance of it has yet occurred in our country, so it probably never may again. And should it occur, even once and again, it will not impoverish your treasury, as it takes nothing from that, and asks but a simple permission, by an act of natural right, to do one of moral justice.
XLIX.
Mr. Jefferson's Will.
I, Thomas Jefferson, of Monticello, in Albemarle, being of sound mind and in my ordinary state of health, make my last will and testament in manner and form as follows:
I give to my grandson Francis Eppes, son of my dear deceased daughter Mary Eppes, in fee simple, all that part of my lands at Poplar Forest lying west of the following lines, to wit: beginning at Radford's upper corner, near the double branches of Bear Creek and the public road, and running thence in a straight line to the fork of my private road, near the barn; thence along that private road, (as it was changed in 1817,) to its crossing of the main branch of North Tomahawk Creek; and from that crossing, in a direct line over the main ridge which divides the North and South Tomahawk, to the South Tomahawk, at the confluence of two branches where the old road to the Waterlick crossed it, and from that confluence up the northernmost branch, (which separate M'Daniels' and Perry's fields,) to its source; and thence by the shortest line to my western boundary. And having, in a former correspondence with my deceased son-in-law John W. Eppes, contemplated laying off for him, with remainder to my grandson Francis, a certain portion in the southern part of my lands in Bedford and Campbell, which I afterwards found to be generally more indifferent than I had supposed, and therefore determined to change its location for the better; now to remove all doubt, if any could arise on a purpose merely voluntary and unexecuted, I hereby declare that what I have herein given to my said grandson Francis, is instead of, and not additional to, what I had formerly contemplated. I subject all my other property to the payment of my debts in the first place. Considering the insolvent state of the affairs of my friend and son-in-law Thomas Mann Randolph, and that what will remain of my property will be the only resource against the want in which his family would otherwise be left, it must be his wish, as it is my duty, to guard that resource against all liability for his debts, engagements or purposes whatsoever, and to preclude the rights, powers, and authorities over it, which might result to him by operation of law, and which might, independently of his will, bring it within the power of his creditors, I do hereby devise and bequeath all the residue of my property, real and personal, in possession or in action, whether held in my own right, or in that of my dear deceased wife, according to the powers vested in me by deed of settlement for that purpose, to my grandson Thomas J. Randolph, and my friends Nicholas P. Trist and Alexander Garrett, and their heirs, during the life of my said son-in-law Thomas M. Randolph, to be held and administered by them, in trust, for the sole and separate use and behoof of my dear daughter Martha Randolph, and her heirs; and aware of the nice and difficult distinction of the law in these cases, I will further explain by saying, that I understand and intend the effect of these limitations to be, that the legal estate and actual occupation shall be vested in my said trustees, and held by them in base fee, determinable on the death of my said son-in-law, and the remainder during the same time be vested in my said daughter and her heirs, and of course disposable by her last will, and that at the death of my said son-in-law, the particular estate of the trustees shall be determined, and the remainder, in legal estate, possession, and use, become vested in my said daughter and her heirs, in absolute property forever. In consequence of the variety and indescribableness of the articles of property within the house at Monticello, and the difficulty of inventorying and appraising them separately and specifically, and its inutility, I dispense with having them inventoried and appraised; and it is my will that my executors be not held to give any security for the administration of my estate. I appoint my grandson Thomas Jefferson Randolph, my sole executor during his life, and after his death, I constitute executors my friends Nicholas P. Trist and Alexander Garrett, joining to them my daughter Martha Randolph, after the death of my said son-in-law Thomas M. Randolph. Lastly, I revoke all former wills by me heretofore made; and in witness that this is my will, I have written the whole with my own hand on two pages, and have subscribed my name to each of them this sixteenth day of March, one thousand eight hundred and twenty-six.
I, Thomas Jefferson, of Monticello, in Albemarle, make and add the following codicil to my will, controlling the same so far as its provisions go:
I recommend to my daughter Martha Randolph, the maintenance and care of my well beloved sister Anne Scott, and trust confidently that from affection to her, as well as for my sake, she will never let her want a comfort. I have made no specific provision for the comfortable maintenance of my son-in-law Thomas M. Randolph, because of the difficulty and uncertainty of devising terms which shall vest any beneficial interest in him, which the law will not transfer to the benefit of his creditors, to the destitution of my daughter and her family, and disablement of her to supply him: whereas, property placed under the exclusive control of my daughter and her independent will, as if she were a femme sole, considering the relation in which she stands both to him and his children, will be a certain resource against want for all.
I give to my friend James Madison, of Montpelier, my gold-mounted walking staff of animal horn, as a token of the cordial and affectionate friendship which for nearly now an half century, has united us in the same principles and pursuits of what we have deemed for the greatest good of our country.
I give to the University of Virginia my library, except such particular books only, and of the same edition, as it may already possess, when this legacy shall take effect; the rest of my said library, remaining after those given to the University shall have been taken out, I give to my two grandsons-in-law Nicholas P. Trist and Joseph Coolidge. To my grandson Thomas Jefferson Randolph, I give my silver watch in preference of the golden one, because of its superior excellence. My papers of business going of course to him, as my executor, all others of a literary or other character I give to him as of his own property.
I give a gold watch to each of my grandchildren, who shall not have already received one from me, to be purchased and delivered by my executor to my grandsons, at the age of twenty-one, and granddaughters at that of sixteen.
I give to my good, affectionate, and faithful servant Burwell, his freedom, and the sum of three hundred dollars, to buy necessaries to commence his trade of glazier, or to use otherwise, as he pleases.
I give also to my good servants John Hemings and Joe Fossett, their freedom at the end of one year after my death; and to each of them respectively, all the tools of their respective shops or callings; and it is my will that a comfortable log-house be built for each of the three servants so emancipated, on some part of my lands convenient to them with respect to the residence of their wives, and to Charlottesville and the University, where they will be mostly employed, and reasonably convenient also to the interests of the proprietor of the lands, of which houses I give the use of one, with a curtilage of an acre to each, during his life or personal occupation thereof.
I give also to John Hemings the service of his two apprentices Madison and Eston Hemings, until their respective ages of twenty-one years, at which period respectively, I give them their freedom; and I humbly and earnestly request of the legislature of Virginia a confirmation of the bequest of freedom to these servants, with permission to remain in this State, where their families and connections are, as an additional instance of the favor, of which I have received so many other manifestations in the course of my life, and for which I now give them my last, solemn, and dutiful thanks.
In testimony that this is a codicil to my will of yesterday's date, and that it is to modify so far the provisions of that will, I have written it all with my own hand in two pages, to each of which I subscribe my name, this seventeenth day of March, one thousand eight hundred and twenty-six.