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Memorandum by Nathaniel Rice and John Baptista Ashe concerning new precincts
Ashe, John Baptista, d. 1734; Rice, Nathaniel, d. 1753
1732
Volume 03, Pages 440-442

Reasons and Objections made and humbly offer'd in Council by Nath. Rice and John Bapta Ashe, two of his Majesty's Council, against the dividing Precincts, and erecting new one by the Governour and Council alone, with[out] the concurrence & assent of the Assembly.

1. As every Precinct is to send a certain Number of Representatives to the Lower House of Assembly, such a method may be destructive of and subvert the present Constitution of the Legislature, which as it consists of an upper and Lower House, whose Powers and privileges are separate and distinct; they ought in such points to be independent either of the other; more especially in so fundamental a one as is this of Representation: For it stands to reason, that if a Power of altering the form of Representation, either by adding to or diminishing the Number of Representatives be lodged in the Persons of whom the upper House consists, that then the Lower House, is dependent on and owes it's Being at least the form thereof (which is in effect the same) to the Upper House; by which means the Upper House will be solely (as it were) the whole Legislature.

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As for instance: suppose the Governor and three of the Council on an emergency to meet (we speak this by way of supposition and for argument sake,) and think it proper to divide a Precinct whose Inhabitants for some particular ends may be at such Governor and Council's devotion into ten Precincts; will not by this means a Majority be obtained in the Lower House?

2. It is absurd to suppose that a power of the part should be greater or indeed equal to that of the whole: Now as the Constitution of the Legislature must be antecedent to any Act thereof, it cannot be dependent on any such Act, much less on an Act of part, as indeed by this Method it would, in that the whole Legislature would owe its Being (at least the form thereof which as we observed before is in effect the same) to the Upper House: And this among others we take to be the reason that the Legislature of Great Britain avoid (tho' many are these the inconveniences ensueing from unequal Representation) endeavouring to remedy them or touching on so tender and constitutional a Point.

3. Another consequence of such a method extreamly absurd will be this: An order of Governor and Council only will have force to supersede, repeal and annul a Law, For if By Law a Precinct is limited and circumscribed by certain Bounds; if by an Order of Governor and Council those Bounds are altered or taken away and new ones prescribed, is not this in effect repealing such Law?

4. We conceive such Business as it relates to the Constitution of the Legislature, most properly to lye before the Governor, Council and Representatives of the People in General Assembly, and as it is to be presumed, they are the most competent judges when such Precincts shall be necessary, so it is, that they will readily concur in erecting new ones, when they shall be so judged to be for the good of the Publick and the benefit of a competent Number of Inhabitants.

5. We are of opinion that this method of erecting Precincts is not only illegal and may be attended with many evil consequences but is also not warranted by His Majesty's Royal Instruction, which forbids the erecting new Judicatures, without his royal Licence; Now by this Method new Judicatures will be erected: But if it were done by an Act of Assembly, at the Prayer of the Representatives of the People, the same would regularly come before His Majesty for his allowance or dissent.

6. We are the more confirmed in this our opinion of the illegality of doing it without the consent of the Representatives of the People in General Assembly from the general Practice of the neighbouring Governments, more particularly Virginia where many precedents appear in

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their printed Laws of such busyness being done by their Governor Council and Assembly; And we are apt to believe our gracious King (for we pretend not in the least to deny or even so much as to touch at the Royal Prerogative) has given as full Powers to the Governor & Council of Virginia, as to the Governor & Council of this Province; nor can we think it the pleasure of our most gracious sovereign (who on all occasions has shewn so tender a regard to us His People of this Province) that the Constitution of the Legislature should be on a more precarious Establishment than that of others.