session, it was repeatedly declared, "That the Lords could not supply any deficiency, or apply any surplusage of the public money, and in case any should be found." And this declaration does not appear to have been contradicted by the Lords, either then or at any time after. The precedents are supposed to prove, not only that the disposal or application of public money is, equally with the raising of it, the exclusive office of the Commons, but also, that it makes no difference whether it be of money then actually in the treasury, or yet to be raised on the people; nor whether the raising and disposing be in the same or in separate bills. Though the precedents referred to by the Senate, in the proceedings of the Council and House of Burgesses, in the years 1771, 1772, and 1773, (the first of which, however, we suppose to be mistaken for 1772) might perhaps be well accounted for from their particular nature, from the history of the times, or from other causes; and though the delegates might produce, from the same records, proofs, much more decisive in their favor, yet they decline resting the matter on that bottom: because, they are of opinion, that the present determination ought not to be influenced by the practice of those who have themselves only copied from the same original. Their practice, and our opinions, must be proved by the same common rule,—the law and practice of Parliament. Their acknowledgment of the rule, proves their submission to it, and that their practice should be tried by the law, and not the law by their practice. How dangerous it is to appeal to other authorities from the Parliamentary records, the true text of decision, will appear also by examining the whole passage, of which a part only was cited from the Commentaries of Judge Blackstone; a writer, celebrated indeed; but, whether most for his attachment to the prerogatives of the crown, or to the rights of the people, would be worthy of consideration, where the question is on one of those rights, which have been of the greatest value to the people-the right of giving and disposing of their own money. That writer, after the definition cited from his book by the Senate, goes on to quote a passage from Judge Hale's treatise on the jurisdiction of Parlia ment, which is to be found more at large in Broke's Abridgement, under the title "Parliament, Pl. 4:" there it appears to be a saying of Kerbie, a clerk of the Parliament, who lays down in express terms, or by direct implication, these following positions, as of the law of Parliament : 1st. That the Lords may amend a bill for granting aids. 2nd. That, if the amendment be by shortening the duration of the grant, they need not return the bill to the Commons for their concurrence. 3rd. That the King may alter a bill. Broke indeed adds a quere to the case; but that Judge Blackstone, disapproved of it, cannot be inferred from his words. It is therefore submitted to the consideration of the Senate, whether they would set up as an arbiter of Parliamentary law, a writer who can cite or refer to such positions, whether condemning them, in decisive and unequivocal terms; for that part of his book, too, which the Senate quote and rely on, he cites no authority whatever. Are we then to take it upon his affirmation, when contradicted by the uniform current of Parliamentary usage? But, waiving further examination of the legality of his opinion, it suffices to observe, as a full answer to it, that the judges of the common law can take no cognizance of the law of Parliament. It can never come judicially in question before them. Their sayings or opinions on the subject, must be ever extra-judicial; and they have accordingly always disclaimed a right to give judgment on them. Definitions therefore, of Parliamentary law, by any other court, by a member of court, or by a private individual, must be rejected as inauthoritative in a Parliamentary disquisition. For these reasons, the delegates still think, that the Senate have no authority to amend the vote in question. But open to conviction, if it can be shown they are wrong, and actuated by a strong desire to promote the public service, as well as to preserve the Constitution entire, they propose to the Senate, if they should still adhere to their former opinions, that a select committee may be appointed by each House, to meet together in full conference, and endeavor to define the office of the two Houses in bills, clauses, and votes, relating to money, and that such definition, if approved by both Houses, may be confirmed by act of Assembly. DRAFT OF A BILL GIVING CERTAIN POWERS TO V.S.A. [Jan. 13, 1778.] Whereas the present war between America & Great Britain was undertaken for defence of the common rights of the American states, & it is therefore just that each of them, when in danger, should be aided by the joint exertions of all; and as on any invasion of this Commonwealth in particular, we should hope for, & expect, necessary aids of militia from our neighboring sister states, so it is incumbent on us to yield the same assistance to them, under the like circumstances; & the laws heretofore empowering the Governor & council to send aids of militia to such states, will expire at the end of this present session of assembly. Be it therefore enacted by the General assembly that on the invasion of any adjacent or neighboring state, & application from Congress, or from the legislative or executive powers of such state for aids of militia, it shall be lawful for the Governor, with the advice of the council of state, to order to their assistance such corps of the militia from any of the counties of this commonwealth as the exigence of the case may require or admit; having regard in such orders to the convenience & vicinity of such counties to the place invaded, their internal security & the imminence of the danger and moreover to appoint such general, field & staff officers as may be requisite to command, attend, & provide for the same; to have them furnished with necessaries for travelling & camp uses, & such arms, ammunition and accoutrements as may be called for if the same can be procured & spared from this Commonwealth. And to answer the expenses hereof in the first instance, the Governor is empowered to draw for any sums of money necessary to carry these purposes into effect on the Treasurer for this commonwealth, who is hereby authorized to pay the same out of any public money in his hands, keeping a separate & distinct account thereof, in order that the same may be reimbursed to the Commonwealth. ' Reported by William Fleming, Jan. 13, 1778, and read the first time. Read the second time and committed to the Committe of the Whole, Jan. 14th. Passed on Jan. 22d. Printed from the draft in Jefferson's handwriting. Such militia while on duty shall be subject to the Continental rules & articles of discipline & government, save only that all courtsmartial, whether general or regimental, which shall be holden on any of them, shall consist of their own officers only. This act shall be in force until the end of the next session of General assembly & no longer. DRAFT OF BILL DESIGNATING PLACES FOR HOLDING COURTS OF CHANCERY AND GENERAL COURT.1 [Jan. 20, 1778.] Whereas by the acts constituting the High court of Chancery & General court, the said courts are to be holden at such place as the legislature shall direct, & no place hath as yet been appointed for that purpose: Be it therefore enacted by the General assembly that for the term of one year after the end of this present session of assembly, & from thence to the end of the session next ensuing, the said courts shall be holden in the Capitol in the city of Williamsburgh. And be it further enacted that it shall be lawful for the said High court of Chancery to appoint from time to time their own Serjeant at arms who shall be attendant on the sd court to perform the duties of his office; for which he shall receive such fees as shall be allowed by law. A BILL GRANTING FREE PARDON TO CERTAIN OFFENDERS.2 V.S.A. [May 14, 1778.] Whereas the American Congress by their resolution passed on the 23d day of April last past, reciting that persuasion & influence, the example of the deluded or wicked, the fear of danger or the ' In drawing the bills establishing these two courts, the place of holding had been purposely omitted, as the "western" party hoped to remove them, with the capitol, to Richmond. This was therefore merely a temporary measure. 2 On May 13th leave was given to Jefferson, Page, Lawson, and Meriwether Smith to prepare this bill, which was introduced by Jefferson, and read for the first and second times on May 14th. It was read for the third time and passed by calamities of war, may have induced some of the subjects of these states to join, aid, or abet the British forces in America, and who, tho' now desirous of returning to their country, may be deterred by the fear of punishment: and that the people of these states are ever more ready to reclaim than to abandon, to mitigate than to increase the horrors of war, to pardon than to punish offenders: did recommend to the legislatures of the several states to pass laws, or to the executive authority of each state, if invested with sufficient power, to issue proclamations, offering pardon, with such exceptions, and under such limitations and restrictions, as they. shall think expedient, to such of their inhabitants or subjects, as have levied war against any of these states, or adhered to, aided or abetted the enemy, and shall surrender themselves to any civil or military officer of any of these states, & shall return to the state to which they may belong before the 10th day of June next and did further recommend to the good & faithful citizens of these states to receive such returning penitents with compassion and mercy, & to forgive & bury in oblivion their past failings and transgressions. Be it therefore enacted by the General assembly that full and free pardon is hereby granted to all such persons without any exception who shall surrender themselves as aforesaid, and shall take the oath of fidelity to this Commonwealth within one month after their return thereto. A BILL FOR THE SPEEDY RECOVERY OF DEBTS DUE THE UNITED STATES.1 V. S. A. [May 19, 1778.] Whereas divers persons receiving money of the United States of America for publick uses, apply it to different purposes, and when called on refuse or neglect to repay the same; others enter the House of Delegates on May 18th, but was thrown out in the Senate. It is printed from the draft in Jefferson's handwriting. 1 On May 18th the House of Delegates adopted a resolution for the preparation of this bill, and appointed Carter, Parker, and Jefferson to prepare it. It was introduced by Parker, May 19th, when it was read for the first time. It was adopted May 21st. This is printed from the original in Jefferson's handwriting, the act as adopted being in Hening, IX, 462. VOL. 1.-10 |