single whig in any one state would not have shuddered at the very idea of a separation of their state from the Confederacy. The tories would at all times have been glad to see the Confederacy dissolved even by particles at a time, in hopes of their attaching themselves again to Great Britain.

8. The 11th article of Confederation admits Canada to accede to the Confederation at its own will; but adds that no other colony shall be admitted to the same, unless such admission be agreed to by nine states." When the plan of April, 1784, for establishing new states was on the carpet, the committee who framed the report of that plan, had inserted this clause, "provided nine states agree to such admission, according to the reservation of the 11th of the articles of Confederation." It was objected 1. That the words of the confederation "no other colony" could only refer to the residuary possessions of Gr. Britain, as the two Floridas, Nova Scotia, &c. not being already parts of the Union; that the law for "admitting" a new member into the union could not be applied to a territory which was already in the Union, as making part of a state which was a member of it. 2. That it would be improper to allow "nine" states to receive a new member, because the same reasons which rendered that number proper now would render a greater one proper when the number composing the Union should be increased. They therefore struck out this paragraph, and inserted a proviso that "the consent of so many states, in Congress, shall be first obtained as may at the time be competent," thus leaving the question whether the 11th article applies to the admission of new states? to be decided when that admission shall be asked. See the Journ of Congress of Apr 20, 1784. Another doubt was started in this debate, viz. whether the agreement of the nine states required by the Confederation was to be made by their legislatures or by their delegates in Congress? The expression adopted viz.: "so many states in Congress is first obtained" shew what was their sense in this matter. If it be agreed that the 11th article of the Confederation is not to be applied to the admission of these new states, then it is contended that their admission comes within the 13th article, which forbids "any alteration unless agreed to in a Congress of the U S, and afterwards confirmed by the legislatures

of every state. The independence of the new states of Kentucké and Frankland will soon bring on the ultimate decision of all these questions.

Particular instances whereby the General assembly of Virginia have shewn that they considered the ordinance, called their Constitution as every other ordinance or act of the legislature, subject to be altered by the legislature for the time being. The convention which formed that Constitution declared themselves to be the house of delegates during the term for which they were originally elected, and in the autumn of the year, met the Senate elected under the new constitution, & did legislative business with them. At this time there were malefactors in the public jail, and there was as yet no court established for their trial. They passed a law appointing certain members by name, who were then members of the Executive council, to be a court for the trial of these malefactors, tho' the constitution had said, in it's first clause, that 'no person should exercise the powers of more than one of the three departments, legislative, executive & judiciary, at the same time.' This proves that the very men who had made that constitution understood that it would be alterable by the General assembly. This court was only for that occasion. When the next general assembly met after the election of the ensuing year, there was a new set of malefactors in the jail, & 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 journals of assembly by me, I am unable to say whether this measure was repealed afterwards. However they are instances of executive & 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 & 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 & judiciary powers at the same time. 3. 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, & consequently instances of the legislative & 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 controul that ordinance, & of course that the state of Virginia has no fixed Constitution at all.

OBSERVATIONS ON THE ARTICLE ETATS-UNIS PREPARED FOR THE ENCYCLOPEDIE. 1

1

J. MSS.

[June 22, 1786.]

1. II. 17. 29. Pa 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 it's commencement. But I do not think the whole number sent would amount to 2000 & being principally men, eaten up with disease, they married seldom &

1 In preparing an article for the Encyclopédie Politique, M. Meusnier applied to Jefferson for information (cf. ante p. 138). On the proofs of that article, Jefferson prepared the above notes. This article was separately printed, and for Jefferson's comments upon it, see his letters of August 25 and 27, 1786, post.

propagated little. I do not suppose that themselves & their descendants are at present 4000, 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, on 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, & 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 labourers, 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, it was common I say for them 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 there, rather than not go. During the time of that service they are better fed, better clothed, and have

Continuing to work for hire marry, and enjoy all the The American govern

lighter labour than while in Europe. a few years longer, they buy a farm, sweets of a domestic society of their own. ments 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 chuse 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 & 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.

P 26. "Une puissance, en effet, devoit statuer, en dernier resort, sur les relations que pouvoient suvire ou servir au sien general," &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 expence of England; but by the exertions & at the expence 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 & 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

1 A note is omitted here, because the press copy is so faded that it is impossible to make it out. It refers to page 18.