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Gun Laws & the Original Intent of the Second Amendment”
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First Published:  5 July 2020
Revised (substantive):  11 September 2020

A     N O T E     O N
 

Anglo-America’s first representative institution, the Virginia House of Burgesses

The Principles of Universal Suffrage and of Full Representation in 1620s–1650s Virginia

The word “burgess” derives from “borough.” Boroughs were the original electoral districts in the early 1600s, before Virginia was divided into counties in 1634.

The first legislative assembly in Anglo-America sat at Jamestown, Virginia in 1619. The representatives of the people (burgesses) were first elected by townships, and then by plantations or settlements, with every plantation or settlement entitled to as many representatives as the inhabitants thought proper to elect. Thus, the General Assembly “holden the 16th day of October, 1629” included 47 Burgesses:

•  “ Imps. ffor the plantation at the colledge ”:
     “Leftn’t. Thomas Osborne, Mathew Edlowe.”

•  “ ffor the necke of land ”:
     “Serit. Sharpe.”

•  “ ffor Shirley Hundred Island ”:
     “Chene Boise, John Browne.”

•  “ for Shirley Hundred Maine ”:
     “Mr. Thomas Palmer, John Harris.”

•  “ ffor Mr. Henry Throgmorton’s plantation ”:
     “William Allen.”

•  “ ffor Jurden’s Journey ”:
     “William Popkton.”

•  “ ffor Chaplaines Choise ”:
     “Walter Price.”

•  “ ffor Westover ”:
     “Christopher Woodward.”

•  “ ffor Flowerdieu Hundred ”:
     “Anthony Pagett.”

•  “ ffor James Citty ”:
     “Mr. Menefie, Mr. Kingsmell.”

•  “ ffor Paces Paines’s ”:
     “L. Willam Perry, John Smyth.”

•  “ ffor the other side of the water ”:
     “Capt. John West, Capt. ffellgate.”

•  “ ffor Pasbehay ”:
     “Thomas Bagwell.”

•  “ ffor the necke of land ”:
     “Richard Brewster.”

•  “ ffor Archer’s Hope ”:
     “Theodore Moysee, Tho: Doe.”

•  “ The plantations between Archer’s Hope and
       Martin’s Hundred
”:
     “Mr. John Utie, Richard Townsend.”

•  “ ffor Hogg Island ”:
     “John Chew, Richard Tree.”

•  “ ffor Martin’s Hundred ”:
     “Tho. Kinston, Tho. ffawcett.”

•  “ ffor Mulbury Iland ”:
     “Tho. Harwood, Phettiplace Clause.”

•  “ ffor Warwicke river ”:
     “Christ. Stokes, Tho. Ceely, Tho. fflint, Zachary Cripps.”

•  “ ffor Warosquoyacke ”:
     “Capt. Nath’l Basse, Richard Bennett, Robert Savin, Tho. Jurdain.”

•  “ ffor Nuttmegg Quarter ”:
     “William Cole, William Bentley.”

•  “ ffor Eliz: Citty ”:
     “Left. Thomson, Mr. English, Mr. Adam Thorowgood, Mr. Rowlston, John Browning, John Dowman.”

•  “ ffor the Easterne shoare ”:
     “noe burgesses did appear.”

The boroughs of Jamestown, Henrico, Bermuda Hundred, and others, sent their members to the assembly under a radical system of representation whereby “all persons inhabitting in this collonie that are freemen” were eligible — indeed, required (or face a fine) — to vote for burgesses. This unique practice of universal male suffrage for a while extended the vote to all freeman inhabitants of early colonial Virginia, regardless of landed wealth, social status (servants were considered freemen once their indenture concluded), or race (an unknown percentage of African-Americans residing in Virginia were freemen, and thus qualified for the franchise, as did free Native Americans, especially Christian Indians, residing within the Anglo-American settlements).

In its original sense, a freeman described a man who is personally free (scil. a man who is not a slave or serf). In later usage, the personal merged with the political, and a freeman came to mean a man who is politically free (scil. a man enjoying the rights and liberties of a free society, as opposed to a tyrannical regime or totalitarian rule).

The generality of free settlers in Virginia prior to the English Revolution (1640–1660) were people of

... modest means, who sold all they had in order to finance their removal to a colony. Other migrants who were unable to pay their passage signed indentures to serve for a set number of years (usually four to seven) in exchange for their transportation. These individuals were at best landless laborers who took ship across the Atlantic after migrating within England in search of work. Some servants did not freely sign indenture contracts but were sent to labor in the plantations because their homelessness or petty crimes had brought them to the attention of the authorities. So although the colonies did not boast the top tiers of the English social hierarchy, they did receive some persons from the bottom, the poorest of the poor. Bound servants migrated to all colonies, though the Chesapeake and the Caribbean islands received most of the very destitute, who worked in the fields. In most places, laborers who survived their indentures could expect to receive land.

(Carla Gardina Pestana, The English Atlantic in an Age of Revolution, 1640–1661, 20–21)

In Virginia, free settlers who owned land could enjoy a measure of personal autonomy reserved in England for a relatively small portion of the population. This led to the emergence of “a local landowning class that balked at the need for subservience to the powerful proprietors and companies” in the mother country, and aspired to control local government (C. G. Pestana, 23–24). Despite the relatively compressed social structure in the colonies of the English Atlantic in the first half of the 17th century (“the great men with interests in the plantations rarely visited, much less took up residence”), early opportunities for upward mobility among landless laborers in the Chesapeake region — becoming landholders, if they survived their indentures, and entering into local leadership — were closing off by 1640. And laws abridging the right of suffrage, or prescribing the qualifications of the members of Virginia’s House of Burgesses, were subsequently passed beginning in 1654–5.

During the English interregnum, the commonwealth of Virginia experimented with limiting the franchise by placing qualifications on voters (restricting the right of suffrage to “all house keepers whether ffreeholders, lease holders, or otherwise tenants,” and to one person in a family) and on their elected representatives (restricted to “persons of knowne integrity and of good conversation and of the age of one & twenty yeares”):

BE it enacted by this present Grand Assembly that all Burgesses shall be sumoned and elected in manner hereafter expressed, That is to say, that the severall and respective sherriffs shall within ten dayes after the receipt of such writts as they shall receive to that purpose cause the same to be published and by giving notice of the same from house to house by the sherriff or his deputy to all persons interested in elections, which he is to doe ex officio: And then and there also to publish and declare the certain day of the week and moneth for chooseing Burgesses to serve in the Assembly for all accustomed places in the severall countyes and parishes respectively.
     That at the day and place of elections the sherriffs shall take view of the said elections, and before the sitting of the Assembly make returne into the secretary’s office, att James Cittie, of the persons then and there elected, by subscription and of the major part of the hands of the electors; and that the sherriff who shall wittingly or willingly make any false return or neglect his duty shall incurr the pennalty of 10000 lb. of tob’o [tobacco].
     That the persons who shall be elected to serve in Assembly shall be such and no other then such as are persons of knowne integrity and of good conversation and of the age of one & twenty yeares — That all house keepers whether ffreeholders, lease holders, or otherwise tenants, shall onely be capeable to elect Burgesses, and none hereby made uncapable shall give his subscription to elect a Burgesse upon the pennalty of four hundred pounds of tobacco and cask to be disposed of by the court of each county where such contempt shall be used: Provided that this word house keepers repeated in this act extend no further then to one person in a ffamily.

(Act VII, as passed by the “Grand Assembly held att James Citty” on 31 March 1655)

A year later, at the next legislative session, this act was amended, lifting its qualifications on voters, and restoring the right of suffrage to all free men, in keeping with the republican principle, no taxation without representation:

WHEREAS we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections, Therefore it is enacted by this present Grand Assembly, That soe much of the act for chooseing Burgesses be repealed as excludes freemen from votes, Provided allwaies that they fairly give their votes by subscription and not in a tumultuous way, and it is further provided by this act that the rest of the act of March, 1654, concerning choosing Burgesses (this clause only excepted) be and remain in full force, any act provided to the contrary notwithstanding.

(Act XVI, as passed by the Grand Assembly on 27 March 1656)

The Virginia commonwealth’s voting Act VII of March 1655, as amended by Act XVI of March 1656 (restoring the ancient usage of all freemen voting), was then reenacted (Act XCIII) as part of the comprehensive revisal undertaken by the provisional government, in March 1658, of all previous “acts of Assembly of this country ... formerly in force” which, “through multiplicitie of alterations and repeales are become so difficult, that the course of justice is thereby obstructed and those that are by the lawes intrusted with power to execute them, may by such their uncertainety be drawne to comitt unwilled errors.” The following Act XCIII is thus especially noteworthy for its careful restatement, after “makeing a dilligent review of all the acts formerly in force,” that the right of suffrage was to be exercised by all free men residing in the colony (and its retention of the qualifications for persons to be elected).

The Election of Burgesses.

BEE it enacted, by this present Grand Assembly, That all Burgesses shall be summoned and elected in manner hereafter expressed, (that is to say,) That the severall and respective sherriffes shall within tenne daies after the receipte of such writtes as they shall receive to that purpose cause the same to be published & by giveing notice of the same from house to house by the sherriffe or his deputie to all persons interrested in elections, which hee is to do ex officio and then and there alsoe to publish and declare the certaine daie of the weeke and moneth for chooseing Burgesses to serve in the Assembly, for all accustomed places in the severall counties, and parishes respectively, That at the day and place of election the sherriffe shall take view of the said election, and before the sitting of the Assemblye to make returne to the secretaries office at James Cittie of the persons then and there elected by subscriptions of the major parte of the hands of the ellectors, And that the sherriff who shall wittinglie or willinglie make any false returne or neglect his duty shall incurr the pennaltie of ten thousand pounds of tobacco: That the persons who shall bee elected to serve in Assembly shall be such and no other then such as are persons of knowne integrity, of good conversation and of the age of one and twenty yeares, And all persons inhabitting in this collonie that are freemen to have their votes in the election of Burgesses, Provided they do not in tumultuous manner, but fairly give their votes by subscriptions as aforesaid.

(Act XCIII, as passed by the Grand Assembly “held at James Cittie” on 13 March 1658)

It was not until an act of 1670 (after the restoration of England’s Stuart monarchy, and the reinstatement of Virginia as a royal colony) that Virginia’s early commitment to a universal right of male suffrage was confined — this time with the usual property qualification, limiting the franchise to freehold inhabitants (those who possessed a freehold estate, and thus, it was assumed, would put the interests of property owners first & foremost).

WHEREAS the usuall way of chuseing burgesses by the votes of all persons who haveing served their tyme are ffreemen of this country who haveing little interest in the country doe oftner make tumults at the election to the disturbance of his majesties peace, then by their discretions in their votes provide for the conservasion thereof, by makeing choyce of persons fitly qualifyed for the discharge of soe greate a trust, And whereas the lawes of England grant a voyce in such election only to such as by their estates real or personall have interest enough to tye them to the endeavour of the publique good; It is hereby enacted, that none but ffreeholders and housekeepers who only are answerable to the publique for the levies shall hereafter have a voice in the election of any burgesses in this country; and that the election be at the courthouse.

(Act III, as passed in October 1670 by the “Grand Assemblie holden at James Cittie by prorogation from the twentieth of October 1669, to the third of October 1670, in the twentie-second yeare of the reigne of our soveraigne lord King Charles the Second,” with Sir William Berkeley as governor)

In 1676, Charles II further enforced this voter qualification with Article II of his instructions to the governor of Virginia, Sir William Berkeley, directing “You shall take care that the members of the assembly be elected, only by FREE HOLDERS, as being more agreeable to the custome of England, to which you are as nigh as conveniently you can to conform yourselfe.”

In other electoral innovations, absentee ballots were allowed at first, so that no man had “to go off the plantation where he lives to choose burgisses” (ACT XIX, as passed by Virginia’s Grand Assembly 6 January 1639). But by mid-17th-century, securing the vote in Virginia had become a problem. “Divers inconveniencies” had ensued from the “disorderly and illegal election of Burgesses, by subscribing of hands contrary to the warrant directed for the sayd election,” and the “Grand Assembly begunne at James Cittie the 5th day of October, 1646” passed Act XX, stipulating that no more “hand writing shall be admitted” (in lieu of a voice vote) and that any freeman who failed to attend, in person, at the time and place appointed for an election (“unles there be lawfull cause for the absenting himselfe”) would be fined 100 pounds of tobacco — about one-eighth the amount of tobacco one laborer could produce in a year. Subsequent acts guaranteeing the integrity of the electoral process imposed increasingly large fines on those who tampered with the vote (scil. illegal voting carried a “pennalty of four hundred pounds of tobacco and cask,” while fraudulent counting/reporting of the vote by the sherriff “shall incurr the pennalty of 10000 lb. of tob’o”).

Of note, it was not until 1723 that racial exclusions were applied to the universal franchise for freeman or freeholder:

... through the recommendation of the Board of Trade and the discovery of a planned black insurrection, a law was passed declaring that “no free negro, mullato, or indian whatsoever, shall hereafter have any vote at the election of burgesses, or any other election whatsoever.”

(W. S. Robinson, Jr., “The Legal Status of the Indian in Colonial Virginia,” 258)

This completed the exclusion of free men of color from the privileges and duties of holding public office and voting. Earlier in 1705,

... the restriction was passed that no Negroes, mulattoes, and Indians “bear any office, ecclesiasticall, civill or military, or be in any place of public trust or power” in Virginia. Violators of this restriction were liable to a fine of £500 current money and an additional £20 of the same currency for each month illegally in office.

(W. S. Robinson, Jr., “The Legal Status of the Indian in Colonial Virginia,” 257)

Related census, citizenship and immigration laws

As we have seen, Virginia’s earliest representative government was grounded on radical principles of universal suffrage and of full representation, extending the right of suffrage to all freemen, who were not at first compellable to go from their plantations to vote for burgesses, but were able to give their suffrages by subscribing a paper (the first absentee voting in this country).

Nonetheless, other settler freedoms — of movement, of employment, of trade, etc. — were more circumscribed. For example, according to statutory law enacted 3 August 1619, settlers who gave or sold hoes or dogs to the natives were fined 5 shillings; selling or giving firearms and ammunition to the aboriginal inhabitants carried the death penalty; and any settlers going twenty miles from home, or absenting themselves seven days, or consorting with the natives on tribal lands, without prior government authorization, were to be heavily fined (20 shillings and 40 shillings respectively):

That no man doe sell or give any of the greatter howes [hoes] to the Indians, or any English dog of quality, as a mastive, greyhound, bloodhounde, lande or water spaniel, or any other dog or bitche whatsoever, of the Englishe race, upon paine of forfaiting 5s sterling to the publique uses of the Incorporation where he dwelleth.
     That no man do sell or give any Indians any piece shott or poulder [powder], or any other armes, offensive or defensive upon paine of being held a Traytour to the Colony, and of being hanged as soon as the facte is proved, without all redemption.
     That no man may go above twenty miles from his dwelling-place, nor upon any voiage whatsoever shalbe absent from thence for the space of seven dayes together without first having made the Governor or comaunder of the same place acquainted therwith, upon paine of paying twenty shillings to the publique uses of the same Incorporation where the party delinquent dwelleth.
     That no man shall purposely goe to any Indian townes, habitations or places or resortes without leave from the Governor or comaunder of that place wher he liveth, upon paine of paying 40s to publique uses as aforesaid.

(Laws passed on 3 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)

This same legislative Assembly in 1619 made provision for taking an accurate census of the inhabitants, with each government head count initially focused on gathering information about inhabitants’ socioeconomic status (i.e., recording whether each “head” who was resident in Virginia was a free and independent? or dependent? person):

That no man living in this Colony, but shall between this [3 August 1619] and the first of January nexte ensueing come or sende to the Secretary of Estate to enter his own and all his servants’ names, and for what terme or upon what conditions they are to serve, upon penalty of paying 40s to the said Secretary of Estate. Also, whatsoever Mrs [masters] or people doe come over to this plantation that within one month of their arrivall (notice being first given them of this very lawe) they shall likewise resorte to the Secretary of Estate and shall certifie him upon what termes or conditions they be come hither, to the ende that he may recorde their grauntes and comissions, and for how long time and upon what conditions their servants (in case they have any) are to serve them, and that upon paine of the penalty nexte above mentioned.
     All Ministers in the Colony shall once a year, namely, in the moneth of Marche, bring to the Secretary of Estate a true account of all Christenings, burials and marriages, upon paine, if they faill, to be censured for their negligence by the Governor and Counsell of Estate; likewise, where there be no ministers, that the comanders of the place doe supply the same duty.

(Laws passed on 3 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)

The settler population was thus closely monitored from the beginning, with initial population counts evolving into Virginia’s large-scale annual census of all inhabitants, with their arms and other property, as mandated in 1631:

IT is ordered and appoynted, That the commanders of all the severall plantations, doe ... uppon the first day of December, take a muster of theire men, togeather with the women and children, and theire ages, countryes, and towns, where they were borne, with the shipps they came in, and the yeare of the Lord, as also of armes and munition, corne, cattle, hoggs, goates, barques, boates, gardens, and orchards, and yf they shall make default, to be censured by the Governor and Counsell.

(Act LVI, as passed by Virginia’s General Assembly, “holden at James Citty” “the 2d of March, 1631”; this legislation was reenacted, verbatim, as ACT LIII, by the Grand Assembly “holden at James Citty the 4th day of September, 1632”; both 1631–2 acts are transcribed from MSS. collected and owned by Thomas Jefferson)

This demographic information was needed primarily for taxation (itself linked to suffrage, on and off) and for effective public administration of the colony and its labor force. As early as 1611, the corporate governing body back home in England (the Virginia Company of London) was trying to control the flow of immigration to Virginia, hoping to stop the influx of “vagrant and unnecessarie persons” who were a drain on limited colonial resources, and encourage instead an influx of “honest and industrious men, as Carpenters, Smiths, Coopers, Fishermen, Tanners, Shoomakers, Shipwrights, Brickmen, Gardeners, Husbandmen, and labouring men of all sorts” who, it was hoped, would contribute to colonial productivity and return a profit for the investors.

facsimile of early-17th-century broadside

^  Broadsheet published in 1611 by the Council for Virginia.
     An early example of the sort of ads furthering England’s colonial enterprise that circulated at the Royal Exchange, the center of British commercial activity from 1569–1666.
     This particular advertisement, calling for artisans of all kinds to join the Virginia colony, spells out policy changes concerning emigration (who was wanted, and who was not) that Francis Bacon would reiterate a decade later in his essay “Of Plantations.”
     The 1611 ad reads in full: “By the Counsell of Virginea. / Seeing it hath pleased God, after such hard successe, and the manifold impediments knowne to the world, that now by the wisdome and industry of the Lord Governour settled in Virginea, the state and businesse of the English Plantation there succeedeth with hope of a most prosperous event, and that therefore it is resolved and almost in a readinesse, for the further benefit and better setling of the said Plantation, to make a new supply of men, and all necessarie provisions, in a Fleet of good Ships, under the conduct of Sir Thomas Gates and Sir Thomas Dale Knights, and for that it is not intended any more to burden the action with vagrant and unnecessarie persons: this is to give notice to so many honest and industrious men, as Carpenters, Smiths, Coopers, Fishermen, Tanners, Shoomakers, Shipwrights, Brickmen, Gardeners, Husbandmen, and labouring men of all sorts, that if they repaire to the house of Sir Thomas Smith in Philpot lane in London, before the end of this present moneth of Januarie, the number not full, they shall be entertained for the Voyage, upon such termes as their qualitie and fitnesse shall deserve. / Imprinted at London for William Welby, 1611.”
     The ad is handsomely printed, typeset in black letter and ornamented with She-philosopher​.com’s Head-piece No. 1 — a symbol of spiritual and physical wayfinding, commonly used in early English books of science and navigation.

Immigrants who did not add to the wealth of the province were not welcome, as in the case of the Frenchmen brought to Virginia in the 1620s to develop a wine industry and a diversified economy that was linked to free markets around the Atlantic rim. The first vines in Virginia were planted by French workers brought to the colony on 10 June 1610 by Lord De La Warr (1577–1618), the new governor and captain general of Virginia (a lifetime appointment given him by the council of the Virginia Company of London, of which he had been a member since 1609). Laws mandating that all settlers plant vines (considered a staple commodity) date to 1619:

Moreover be it enacted by this present Assembly, that every householder doe yearly plante and maintaine ten vines untill they have attained to the art and experience of dressing a Vineyard either by their owne industry or by the Instruction of some Vigneron. And that upon what penalty soever the Governor and Counsell of Estate shall thinke fitt to impose upon the neglecters of this acte.

(Law passed on 2 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)

Once situated in Virginia, the French viticulturists reneged on their deal, neglecting to cultivate the vine in order to plant (the much more profitable) tobacco, thus adding to the strains of monocultural production by contributing to the oversupply of Virginia tobacco. This, in turn, threatened the export market for that commodity as well as the colony’s Anglo-American planters of tobacco, who were “dishartened” by the competition. The result: government protectionism by way of Anglo-America’s first Aliens Restriction Act (allowing the Virginia government to imprison and deport French inhabitants brought to the colony on the 17th-century equivalent of work visas):

UPPON a remonstrance preferr’d to the assembly, complayninge that the ffrenchmen who were, about ten yeares since, transported into this country for the plantinge and dressings of vynes, and to instruct others in the same, have willinglie concealed the skill, and not only neglected to plant any vynes themselves, but have also spoyled and ruinated that vyniard, which was, with great cost, planted by the charge of the late company [the Virginia Company of London, whose charter was revoked in 1624, thereby making Virginia a royal colony] and theire officers here; and yet notwithstanding have receaved all favour and encouragement thereunto, which hath dishartened the inhabitants here, It is therefore ordered that the sayd ffrenchmen, togeather with theire families, be restrayned and prohibited from plantinge tobacco, uppon penaltie to forfeit theire leases, and imprisonment untill they will depart out of this colony.

(Act XVI, passed by Virginia’s General Assembly, “holden at James Citty the 21st of ffebruary, 1631–2”)

In the 1650s, laws were passed allowing the government to control alien labor, which was lumped in with Irish labor (in the 17th century, the Irish were considered a different race, separate and distinct from the English race), and first regulated in 1655:

BE it enacted by this Grand Assembly, That all Irish servants that from the first of September, 1653, have bin brought into this collony without indenture (notwithstanding the act for servants without indentures it being only the benefitt of our own nation) shall serve as followeth, (vizt.) all above sixteen yeares old to serve six years, and all under to serve till they be twenty-four years old and in case of dispute in that behalfe the court shall be judge of their age.

(Act VI, passed “att a Grand Assembly, held att James Citty, March 31, 1655”)

then amended by the Virginia Assembly in March 1657–58 so as all aliens were compellable to serve as long as Irish servants — “... and all aliens to be included in this act” (Act LXXXV).

(The Act for Irish Servants would later be repealed, at a legislative session held 13 March 1659–60, because the length of indenture specified in Act 85 of March 1657–58 had “discouraged” aliens from coming to Virginia, which desperately needed their labor. The revised Act XIV of March 1659–60 mandated that “for the future no servant comeing into the country without indentures, of what christian nation soever, shall serve longer then those of our own country, of the like age.”)

Legal inhabitants of Virginia were formally known as denizens, and the first law pertaining to what we would now call the acquisition of citizenship (by “aliens and strangers” who had been resident in the colony for four or more years) was enacted in 1658:

BEE it alsoe [further] enacted and confirmed by the authoritie aforesaid, That all aliens and strangers who have inhabited the countrey the space of ffower yeeres, and have a firme resolution to make this countrey their place of residence shall be free denisons of this collony, Provided they and everie of them take the oath of ffidelitie to be true to the government of this countrey, And the said oath is to be administred by the severall courts respectively in the counties where anie such aliens do dwell: And it is also further enacted that their children also shall bee ffree denisons of this countrey they and everie of them, Also takeing the said oath of ffidellity when they shall attain to lawfull age, which said oath is to be administred by the severall countie courts where they shall happen to live as aforesaid.

(ACT CXVIII, as passed by “a Grand Assembly holden at James Cittie, March the 13th, 1657–8”)

The first rights of Virginia citizenship were conferred on John Johnson, a Dutchman and millwright (whose particular skillset was in great demand), two years later:

ORDERED, That John Johnson, millright, being a Dutchman be for the encouragment of other artificers of what nation soever admitted to be a denizen of Virginia, he haveing been resident here much longer then the act for denizens requires, And intending according to the tenor thereof to make this the place of his future residence, Therefore upon oath taken according to act, his letters of denization are ordered to issue forth.

(“Orders of a Grand Assemblie, held att James Cittie, March 13th, 1659–60”)

 


**  N O T E  **    On 7/21/2020, President Donald Trump signed a memorandum that seeks to bar persons residing in the U.S. illegally from being counted for congressional reapportionment, as reported in “Trump Signs Memorandum Excluding Those in U.S. Illegally from Reapportionment” by Jill Colvin and Kevin Freking of The Associated Press (posted to the PBS NewsHour website, 7/21/2020).
   This is yet another attempt at radically modernizing U.S. constitutional law, all the while pretending to be rooted in founding principles:
   

Since the first U.S. census in 1790, both U.S. citizens and noncitizens — regardless of immigration status — have been included in the country’s official population counts. [...].
   The state of Alabama, however, is arguing in an ongoing federal lawsuit that the framers of the Constitution did not intend for the term “persons” to include immigrants living in the country without authorization. Alabama says it’s trying to avoid losing a seat in Congress after the 2020 census by seeking to leave out unauthorized immigrants from the results of the national count that are used to reapportion the U.S. House.
   U.S. Rep. Mo Brooks, R-Ala., who joined the state’s lawsuit, and Alabama State Attorney General Steve Marshall both praised Trump’s memo in statements released Tuesday [7/21/2020].
   “Representation should be based on those people who reside in their states and this country lawfully,” Marshall said in a statement. “A contrary result would rob the State of Alabama and its legal residents of their rightful share of representation and undermine the rule of law.”

(Hansi Lo Wang, “With No Final Say, Trump Wants to Change Who Counts for Dividing Up Congress’ Seats,” n. pag.; reference courtesy “vnt” in a comment posted to the AP story, “Trump Will Face Court Challenge to Order Excluding Unauthorized Immigrants from U.S. Census” by Mike Schneider of The Associated Press)

   Historically, “aliens and strangers” and other persons residing in this country without the proper authorization (illegal immigrants) have always been counted in the census, and included in the apportionment base for representatives (as in the 1658 statute mandating that “all persons inhabitting in this collonie that are freemen [are] to have their votes in the election of Burgesses”). As I have documented briefly above, since the founding of this country in the early 17th century (with the first, lasting Anglo-American settlement at Jamestown, Virgina), the rationale for fairly apportioning legislative representatives has never been legal residence (“citizenship”), but taxpayer status, in keeping with the republican principle no taxation without representation (as in the 1656 statute opening with the principled declaration that “we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections”).
   Seventeenth-century statutes did not privilege “the citizen population,” as distinguished from “the overall population.” And the annual census — intended to provide a true accounting for policymakers of the provincial population, assets, and GDP — was concerned with getting an accurate count of all “inhabitants” (documented, and not). The term “persons” most definitely included “immigrants living in the country without authorization,” who were counted annually like everyone else, and promptly taxed (with a few early exceptions for newcomers, and for “all the old planters that were here before or came in at the last coming of sir Thomas Gates”). Eventually, all inhabitants of Anglo-American settlements were taxed, with householders paying a poll tax on dependents (women, children, servants, slaves) as well as themselves.
   The U.S. Constitution (1789) built on the existing body of Anglo-American law, especially as it had developed in Virginia. The founding principle of no taxation without representation carried over into the 18th century, as we see in the constitutional language of 1789 juxtaposing the two, with the broadest possible apportionment base for representatives, exempting only “Indians not taxed” from the count (in Virginia, tributary tribes who acknowledged themselves to be English subjects were by special provision excluded from the poll tax, as in the Assembly’s statutory list of tithables in 1723 and 1748):
   

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the state of New-Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence-Plantations one, Connecticut five, New-York six, New-Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North-Carolina five, South-Carolina five, and Georgia three.

(Article I, Section II of the Constitution of the United States [1789], as printed in 1809; click/tap here for the text of the original first amendment, “Of Representation,” which would have added new constitutional milestones for representation affecting the early growth of congress)

This rationale was later retained in the 14th Amendment, which also mandates “counting the whole number of persons in each State, excluding Indians not taxed” as the basis for apportionment of representatives:
   

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

(Section II of the Fourteenth Amendment to the Constitution of the United States; adopted in 1868)

Of note, the phrase “male inhabitants of such State, being twenty-one years of age, and citizens of the United States” here pertains not to the apportionment base for representatives, but to eligible voters, whose right to vote can not be denied or abridged without changing “the basis of representation” and reducing the apportionment of representatives proportionally.
   Given that the practice of “counting the whole number of persons in each State, excluding Indians not taxed” dates back to the 1630s in Anglo-America, it is historically inaccurate for President Trump to claim that
   

Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.

(Donald J. Trump, Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, issued on 21 July 2020)

   Jill Colvin and Kevin Freking report that “The presidential memorandum is expected to draw legal challenges.”
   And so it should.
   
   UPDATE 1:   On 7/29/2020, U.S. Census Bureau director Steven Dillingham testified at an emergency congressional hearing regarding President Trump’s 7/21/2020 memorandum seeking to exclude people in the country illegally from being included during the process for redrawing congressional districts. Four former Census Bureau directors who served under Democratic and Republican presidents also testified, as did a Chapman University law professor, all of whom were asked whether President “Trump’s order violated the law, if every person should be counted and if apportionment needs to include every person, including undocumented workers.” For details, seeWATCH: Census Head Tells House Oversight Committee He Wasn’t Told about Trump District Drawing Order” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 7/29/2020).
   
   UPDATE 2:   President Trump’s latest artifice for suppressing the constitutionally-mandated count of the overall population (“the whole number of persons in each State, excluding Indians not taxed”) in the U.S.: “What Risks Does Ending the Census Count Early Pose?” (PBS NewsHour Weekend segment, first aired 8/9/2020).
   SUMMARY: “The Census Bureau will stop its 2020 census count including in-person, mail, by phone and online on September 30, a month sooner than scheduled despite the delays caused by COVID-19. Hansi Lo Wang, a national correspondent at NPR, joins Hari Sreenivasan to discuss how this change may leave out historically undercounted groups including communities of color and immigrants.”
   
   UPDATE 3:   And another parry in the culture war President Trump is waging against this country’s radical legacy of universal suffrage: “GOP Ramps Up Effort to Monitor Voting after Restrictions Eased” by Eric Tucker and Nicholas Riccardi of The Associated Press (posted to the PBS NewsHour website, 8/11/2020).
   At this country’s founding in the early decades of the 17th century, the republicans who transplanted to Anglo-America were so intent on getting out the popular (male) vote that they passed laws levying substantial fines on those inhabitants who didn’t fulfill their civic duty and participate fully in all scheduled elections.
   Now in 2020, the Republican powers-that-be are intent on suppressing the popular vote, manufacturing fraud where there is none, and abusing the power of the state and courts in order to disenfranchise voters. The Republican National Committee and the Trump campaign are suing to give new powers to “poll monitors,” allowing them to challenge the eligibility of voters who may not think or vote as they would wish: “The GOP is recruiting 50,000 monitors, typically party activists and specially appointed volunteers, across 15 battleground states. Meanwhile, the party has filed, or intervened in, lawsuits challenging election rules across the country, including cases in battleground states like Nevada, Wisconsin and Florida over laws related to absentee ballots and voting by mail.” (E. Tucker & N. Riccardi, n. pag.)
   As described above, tampering with the popular vote in such a “tumultuous manner” is absolutely antithetical to the vision of popular government that drove the original Anglo-American democratical experiment.
   
   UPDATE 4:   The PBS NewsHour has again interviewed Hansi Lo Wang concerning looming problems with the 2020 census: “How Pandemic, Politicization Could Jeopardize 2020 Census” (first aired 9/1/2020).
   Commenting on this interview, “Ron Dodson” points out that this will “be the first failed census since 1920 which, ironically was conducted during the final stages of a pandemic. Another historic footnote is the last time the Census Bureau was pressured into sharing citizenship data, thousands of Japanese-Americans ended up in internment camps.” (n. pag.)
   As with the Trump administration’s efforts to roll back universal suffrage, executive branch interference in the 2020 Census, with the goal of distorting the count in order to further a partisan political agenda, is unconstitutional. A failed census — be it due to Trump administration malice and/or incompetence — is in violation of the law.
   As described above, an accurate count of all the country’s inhabitants has been stipulated by law since the first American census, prescribed by the Virginia legislature in 1619.
   
   UPDATE 5:   The first of the several lawsuits “filed in tandem across the country, challenging Trump’s memorandum as unconstitutional” was argued before a three-judge panel in New York federal court on 9/3/2020: seeAttorneys Argue Trump’s Exclusion Order for Count Is Illegal” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 9/3/2020).
   According to Schneider, attorneys for the State of New York and civil rights groups contend “that the president doesn’t have the discretion to ‘manipulate’ the census data to his liking once the count is finished.” “‘We don’t think it’s a difficult constitutional question,’ said Judith Vale, an attorney with the New York Attorney General’s Office. ‘The defendants have no authority, no discretion to subtract millions of undocumented immigrants.’” (n. pag.)
   Conversely, the defense contends “that the president has almost unlimited discretion to exclude people in the country illegally from the apportionment count.” When questioned closely by one of the judges, a government attorney, Sopan Joshi, admitted “there was no historical precedent to exclude people in the country illegally from the apportionment process,” but argued that history doesn’t matter “since the president has broad leeway in making decisions on the census.” (n. pag.)
   
   UPDATE 6:   “The Trump administration has pushed the Census Bureau to speed up the timeline for the count, and the Republican-controlled Senate failed to pass an extension allowing it to continue into next year. That has exacerbated concerns by civil rights groups and others of hard-to-count communities getting missed, especially people of color like Native Americans.” (Matthew Brown, Lindsay Whitehurst, and Iris Samuels for The Associated Press, “Battered by the Virus, Tribes Race to Boost Census Count,” n. pag.; posted to the PBS NewsHour website, 9/8/2020).
   “Native Americans are far from the only U.S. community of color facing a potential undercount, and a group of cities, counties, civil rights groups and the Navajo Nation are suing to extend the deadline. A judge in California over the weekend issued a restraining order that stops the Census Bureau from winding down its operations until a federal court hearing next week.” (M. Brown, L. Whitehurst, and I. Samuels, n. pag.)