Page:Memoir, correspondence, and miscellanies, from the papers of Thomas Jefferson - Volume 1.djvu/421

 405

ensuing year, there was a new set of malefactors in the jail, and no court to try them. This Assembly passed a similar law to the former, appointing certain members of the Executive Council, to be an occasional court for this particular case. Not having the jour nals of Assembly by me, I am unable to say whether this measure was repealed afterwards. However, they are instances of execu tive and judiciary powers exercised by the same persons, under the authority of a law, made in contradiction to the constitution.

2. There was a process depending in the ordinary courts of justice, between two individuals of the name 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 per sons to exercise legislative and judiciary powers, at the same time.

3. The Assembly is in the habitual exercise, during their ses sions, of directing the Executive what to do. There are few pages of their journals, which do not furnish proofs of this, and, conse quently, 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 Encyclopedic 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