Sunday, July 3, 2022

III. Third Draft by Jefferson, [before June 1776]

III. Third Draft by Jefferson

[Before 13 June 1776]

A Bill1 for new-modelling the form of Government and for establishing1 the Fundamental principles thereof in future.

Whereas George  Guelf king of Great Britain and Ireland and Elector of Hanover, heretofore entrusted with the exercise of the kingly office in this government hath endeavored to pervert the same into a detestable and insupportable tyranny;

by putting his negative on laws the most wholesome & necessary for ye. public good;

by denying to his governors permission to pass laws of immediate & pressing importance, unless suspended in their operation for his <con> assent, and, when so suspended, neglecting to attend to them for many years;

by refusing to pass certain other laws, unless the persons to be benefited by them would relinquish the inestimable right of representation in the legislature

by dissolving legislative assemblies repeatedly and continually for opposing with manly firmness his invasions on the rights of the people;

when dissolved, by refusing to call others for a long space of time, thereby leaving the political system without any legislative head;

by endeavoring to prevent the population of our country, & for that purpose obstructing1 the laws for the naturalization of foreigners & raising the conditions of new appropriations1 of lands;

by keeping among us,1 in times of peace, standing armies & ships of war;

by affecting1 to render the military independent of & superior to the civil power;

by combining with others to subject us to a foreign jurisdiction, giving his assent to their pretended acts of legislation

for quartering large bodies of troops among us;

for cutting off our trade with all parts of the world;

for imposing taxes on us without our consent;

for depriving us of the benefits of trial by jury;

for transporting us beyond seas to be tried for pretended offences; and

for suspending our own legislatures & declaring themselves invested with power to legislate for us in all cases whatsoever;

by plundering our seas, ravaging our coasts, burning our towns and destroying the lives of our people;

by inciting insurrections of our fellow subjects with the allurements of forfeiture & confiscation

by prompting our negroes to rise in arms among us; those very negroes whom <he hath from time to time> by an inhuman use of his negative he hath refused us permission to exclude by law

by endeavoring to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, & conditions of existence;

by transporting at this time a large army of foreign mercenaries to compleat1 the works of death, desolation, & tyranny already begun with circumstances1 of cruelty & perfidy so unworthy the head of a civilized nation;

by answering our repeated petitions for redress with a repetition of injuries;

and finally by abandoning the helm of government and declaring us out of his allegiance & protection;

by which several acts of misrule the said George  Guelf has forfeited the kingly office and has rendered it necessary for the preservation of the people that he should be immediately deposed from the same, and divested of all it’s privileges, powers, & prerogatives:

And forasmuch as the public liberty may be more certainly secured by abolishing an office which all experience hath shewn to be inveterately inimical thereto <in which> and it will thereupon become further necessary to re-establish such antient principles as are friendly to the rights of the people and to declare certain others which may co-operate with and fortify the same in future.

Be it therefore enacted by the authority of the people that the said George  Guelf be, and he hereby is deposed from the kingly office within this government and absolutely divested of all it’s rights, powers and prerogatives; and that he and his descendants and all persons claiming1 by or through him, and all other persons whatsoever shall be & for ever remain1 incapable of2 the same; and that the said office shall henceforth cease1 and never more either in name or substance be re-established within this colony.1

And be it further enacted by the authority aforesaid that the following fundamental laws and principles of government shall henceforth be established.

The Legislative, Executive and Judiciary offices shall be kept for ever separate, & no person exercising the one shall be capable of appointment to the others, or to either of them.

i. legislative.

Legislation shall be exercised by two separate houses, to wit a house of Representatives and a house of Senators, which shall be called the General Assembly of Virginia.

The º sd. house of Representatives shall be composed of persons chosen by the people annually on the [1’st day of October]3 and shall meet in General assembly on the [15’th day of November] following, and so from time to time on their own adjournments, or at any other time when summoned by the Administrator and <to> shall continue sitting so long as they shall think the publick service requires.

Vacancies in the said house by death or disqualification shall be filled by the electors under a warrant from the Speaker of the said house.

All º male persons of full age and sane mind having a freehold estate in [one fourth of an acre] of land in any town, or in [25] acres of land in the country, and all persons resident in the colony who shall have paid scot and lot to government the last [two years] shall have right to give their vote in the election of their respective representatives.º and every person so qualified to elect shall be capable of being elected, provided he shall have given no bribe either directly or indirectly to any elector, and shall take an oath of fidelity to the state and of duty in his office, before he enters on the exercise thereof. during his continuance in the said office he shall hold no public pension nor post of profit, either himself, or by another for his use.

The number of representatives for each county or borough shall be so proportioned to the number of it’s qualified electors that the whole number of representatives shall not exceed [300] nor be less than [125.] for the present there shall be one representative for every [ ] qualified electors in each county or borough: but whenever this or any future proportion shall be likely to exceed or fall short of the limits beforementioned, it shall be again adjusted by the house of representatives.

The house of Representatives when met shall be free to act according to their own judgment<s> and conscience.

The º Senate shall consist of not less than [15] nor more than [50] members who shall be appointed by the house of Representatives.

one third of them shall be removed out of office by lot at the end of the first [three] years and their places be supplied by a new appointment; one other third shall be removed by lot in like manner at the end of the second [three] years and their places be supplied by a new appointment; after which one third shall be removed annually at the end of every [three] years according to seniority. when once removed, they shall be for ever incapable of being re-appointed to that house. their qualifications shall be an oath of fidelity to the state, and of duty in their office, the being [31] years of age at the least, and the having given no bribe directly or indirectly to obtain their appointment. while in the Senatorial office they shall be incapable of holding any public pension or post of profit either themselves, or by others for their use.

The judges of the General court and of the High court of Chancery shall have session and deliberative voice, but not suffrage in the house of Senators.

The Senate and the house of representatives shall each of them have power to originate and amend bills; save only that bills for levying money <bills> shall be originated and amended by the representatives only: the assent of both houses shall be requisite to pass a law.

The General assembly shall have no power to pass any law inflicting death for any crime, excepting murder, & <such> those offences in the military service for which they shall think punishment by death absolutely necessary: and all capital punishments in other cases are hereby abolished. nor shall they have power to prescribe torture in any case whatever: nor shall there be power any where to pardon crimes or to remit fines or punishments: nor shall any law for levying money be in force longer than [ten years.] from the time of it’s commencement.

[Two thirds] of the members of either house shall be a Quorum to proceed to business.

ii. executive.

The executive powers shall be exercised in manner following.

One º person to be called the [Administrator] shall be annually appointed by the house of Representatives on the second day of their first session, who after having acted [one] year shall be incapable of being again appointed to that office until he shall have been out of the same [three] years.

Under º him shall be appointed by the same house and at the same time a Deputy Administrator to assist his principal in the discharge of his office, and to succeed, in case of his death before the year shall have expired, to the whole powers thereof during the residue of the year.

The Administrator shall possess the powers formerly held by the king: save only that, he shall be bound by acts of legislature tho’ not expressly named;

he shall have no negative on the bills of the Legislature;

he shall be liable to action, tho’ not to personal restraint for private duties or wrongs;

he shall not possess the prerogatives

of dissolving, proroguing or adjourning either house of Assembly;

of declaring war or concluding peace;

of issuing letters of marque or reprisal;

of raising or introducing armed forces, building armed vessels, forts, or strong holds;

of coining monies or regulating their value;

of regulating weights and measures;

of erecting courts, offices, boroughs, corporations, fairs, markets, ports, beacons, lighthouses, seamarks.

of laying embargoes, or prohibiting the exportation of any commodity for a longer space than [40] days.

of retaining or recalling a member of the state but by legal process pro delicto vel contractu.

of making denizens;

<of pardoning crimes, or remitting fines or punishments;>4

of creating dignities or granting rights of precedence.

but these powers shall be exercised by the legislature alone. and excepting also those powers which by these fundamentals are given to others, or abolished.

Aº Privy council shall be annually appointed by the house of representatives, whose duty it shall be to give advice to the Administrator when called on by him. with them the Deputy Administrator shall have session and suffrage.

Delegates º to represent this colony in the American Congress shall be appointed when necessary by the house of Representatives. after serving [one] year in that office they shall not be capable of being re-appointed to the same during an interval of [one] year.

aº Treasurer shall be appointed by the house of Representatives who shall issue no money but by authority of both houses.

anº Attorney general shall be appointed by the house of Representatives.

High-sheriffsº and Coroners of counties shall be annually elected by those qualified to vote for representatives: and no person who shall have served as highsheriff [one] year shall be capable of being re-elected to the said office in the same county till he shall have been out of office [five] years.

Allº other Officers civil and military shall be appointed by the Administrator; but such appointment shall be subject to the negative of the Privy council, saving however to the Legislature a power of transferring to any other persons the appointment of such officers or of any of them.

iii. judiciary.

The Judiciary powers shall be exercised

First by County courts and other inferior jurisdictions:

Secondly by a General court & a High court of Chancery:

Thirdly by a Court of Appeals.

Theº judges of the County courts and other inferior jurisdictions shall be appointed by the Administrator, subject to the negative of the privy council. they shall not be fewer than [five] in number. their jurisdiction shall be defined from time to time by the legislature: and they shall be removeable for misbehavior by the court of Appeals.

Theº Judges of the General court and of the High court of Chancery shall be appointed by the Administrator and Privy council. if kept united they shall be [5] in number, if separate, there shall be [5] for the General court & [3] for the High court of Chancery. the appointment shall be made from the faculty of the law, and of such persons of that faculty as shall have actually exercised the same at the bar of some court or courts of record within this colony for [seven] years. they shall hold their commissions during good behavior, for breach of which they shall be removeable by the court of Appeals. their jurisdiction shall be defined from time to time by the Legislature.

Theº Court of Appeals shall consist of not less than [7] nor more than [11] members, to be appointed by the house of Representatives: they shall hold their offices during good behavior, for breach of which they shall be removeable5 by an act of the legislature only. their jurisdiction shall be to determine finally all causes removed before them from the General court or High court of Chancery on suggestion of error: to remove judges of the General court or High court of Chancery, or of the County courts or other inferior jurisdictions for misbehavior: [to try impeachments against high offenders lodged before them by the house of representatives for such crimes as shall hereafter be precisely defined by the Legislature, and for the punishment of which the said legislature shall have previously prescribed certain and determinate pains.] in this court the judges of the General court and High court of Chancery shall have session and deliberative voice, but no suffrage.

Allº facts in causes, whether of Chancery, Common, Ecclesiastical, or Marine law, shall be tried by a jury upon evidence given viva voce, in open court: but where witnesses are out of the colony or unable to attend through sickness or other invincible necessity, their depositions may be submitted to the credit of the jury.

Allº Fines and Amercements shall be assessed, & Terms of imprisonment for Contempts & Misdemeanors shall be fixed by the verdict of a jury.

Allº Process Original & Judicial shall run in the name of the court from which it issues.

Twoº thirds of the members of the General court, High court of Chancery, or Court of Appeals shall be a Quorum to proceed to business.

iv. rights private and public.

Unappropriated º or Forfeited lands shall be appropriated by the Administrator with the consent of the Privy council.

Every person of full age neither owning nor having owned [50] acres of land, shall be entitled to an appropriation of [50] acres or to so much as shall make up what he owns or has owned [50] acres in full and absolute dominion, and no other person shall be capable of taking an appropriation.

Lands heretofore holden <in fee> of the crown in feesimple, and those hereafter to be appropriated shall be holden in full and absolute dominion, of no superior whatever.

No lands shall be appropriated until purchased of the Indian native proprietors; nor shall any purchases be made of them but on behalf of the public, by authority of acts of the General assembly to be passed for every purchase specially.

The territories contained within the charters erecting the colonies of Maryland Pennsylvania, North and South Carolina, are hereby ceded, released, & for ever confirmed to the people of those colonies respectively, with all the rights of property, jurisdiction and government and all other rights whatsoever which might at any time heretofore have been claimed by this colony. the Western and Northern extent of this country shall in all other respects stand as fixed by the charter of  until by act of the Legislature one or more territories shall be laid off Westward of the Alleghaney mountains for new colonies, which colonies shall be established on the same fundamental laws contained in this instrument, and shall be free and independant of this colony and of all the world.

Descents shall go according to the laws of Gavelkind, save only that females shall have equal rights with males.

Noº person hereafter coming into this country shall be held within the same in slavery under any pretext whatever.

Allº persons who by their own oath or affirmation, or by other testimony shall give satisfactory proof to any court of record in this colony that they purpose to reside in the same [7] years at the least and who shall subscribe the fundamental laws, shall be considered as residents and entitled to all the rights of persons natural born.

Allº persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution.

Noº freeman shall be debarred the use of arms [within his own lands or tenements]

Thereº shall be no standing army but in time of actual war.

Printingº presses shall be free, except so far as by commission of private injury cause may be given of private action.

Allº Forfeitures heretofore going to the king, shall go to the state; save only such as the legislature may hereafter abolish.

Theº royal claim to Wrecks, waifs, strays, treasure-trove, royal mines, royal fish, royal birds, are declared to have been usurpations on common right.

Noº Salaries or Perquisites shall be given to any officer but by some future act of the legislature. no salaries shall be given to the Administrator, members of the Legislative houses, judges of the court of Appeals, judges of the County courts, or other inferior jurisdictions, Privy counsellors, or Delegates to the American Congress: but the reasonable expences of the Administrator, members of the house of representatives, judges of the court of Appeals, Privy counsellors, & Delegates, for subsistence while acting in the duties of their office, may be borne by the public, if the Legislature shall so direct.

<Theº Qualifications of all officers not otherwise hereby directed, shall be an oath of fidelity to the state, and the having given no bribe to obtain their office> No person shall be capable of acting in any office, Civil, Military [or Ecclesiastical] who shall have given any bribe to obtain such office, or who shall not previously take an oath of fidelity to the state.

None of these fundamental laws and principles of government shall be repealed or altered, but by the personal consent of the people on summons to meet in their respective counties on one and the same day by an act of Legislature to be passed for every special occasion: and if in such county meetings the people of two thirds of the counties shall give their suffrage for any particular alteration or repeal referred to them by the said act, the same shall be accordingly repealed or altered, and such repeal or alteration shall take it’s place among these fundamentals & stand on the same footing with them, in lieu of the article repealed or altered.

The laws heretofore in force in this colony shall remain <still> in force, except so far as they are altered by the foregoing fundamental laws, or so far as they may be hereafter altered by acts of the Legislature.

Dft (NN). This copy of TJ’s constitution was folded and docketed in correct legislative form. At the top of the two sheets, after it was folded, TJ endorsed this title on his substantive law: “A Bill for new modelling the form of government, & for establishing the fundamental principles thereof in future. “Below this, he added: “It is proposed that this bill, after correction by the Convention, shall be referred by them to the people to be assembled in their respective counties and that the suffrages of two thirds of the counties shall be requisite to establish it.”

The provenance of this text is given in a memorandum of Victor H. Paltsits (Ford Papers, NN, 1 Feb. 1916): the document was acquired from Cassius F. Lee, Jr., of Alexandria, by “William Evarts Benjamin, then a well-known dealer of New York City who acted in the matter for some woman whose name is not revealed.” Alexander Maitland purchased it of Benjamin for the Lenox Library. Shortly after this text was brought to light in 1890, efforts were made to identify it as the copy that TJ had given to George Wythe to convey to the Virginia Convention (D. R. Anderson, “Jefferson and the Va. Const.,” Amer. Hist. Rev.xxi [1915–1916], 751). A close comparison of the copy found among Wythe’s papers at his death in 1806 and printed with meticulous accuracy in the Richmond Enquirer, 20 June 1806, clearly establishes the identity of that copy and the one now in the New York Public Library, here designated as the Third Draft (Boyd, Declaration of Independence, 1945, p. 44–5). In 1825 TJ wrote: “I … drew a sketch or outline of a Constitution, with a preamble, which I sent to Mr. Pendleton, president of the convention… . He informed me afterwards by letter, that he received it on the day on which the Committee of the whole had reported to the House the plan they had agreed to …” (TJ to Augustus B. Woodward, 3 Apr. 1825). It has been assumed that this was a mistake of memory on TJ’s part and that he confused Pendleton with Wythe (Hazelton, p. 451). Wythe reported to TJ that “the one you put into my hands was shewn [italics supplied]” to those chiefly engaged in framing the Constitution (Wythe to TJ, 27 July 1776). This, together with the significant fact that Wythe’s copy remained among his papers, indicates that TJ was correct in saying he had sent a copy to Pendleton. If so, this would tend to confirm the supposition advanced in the notes to the Second Draft that two copies were sent. Wirt indicates that the copy he saw in the State archives was the one “forwarded … to Mr. Wythe”; however, he also describes it as “an original rough draught,” a description which scarcely fits the Wythe copy or Third Draft (Wirt, Henry, 1, 196). Moreover, if Wythe’s copy had been used by the Convention as the text from which several parts were taken for incorporation in the Constitution adopted by that body, it seems very likely that some corrections or markings on the MS of the text would have been made to indicate what parts had been selected, how they had been altered, &c. (see Conv. Jour., May 1776, 1816 edn., p. 78, for 28 June, when it was ordered that “the said plan of government, together with the amendments, be fairly transcribed” [italics supplied]). No such alterations or markings appear on the Third Draft.

1MS torn; text supplied from the precisely correct and literal text printed in the Richmond Enquirer, 20 June 1806.

2A word must have been omitted by TJ at this point; elsewhere in the document the comparable phrase is employed: e.g., “incapable of holding any public pension …,” not “incapable of any pension.” The fact is that at this point in the Second Draft TJ wrote: “incapable of being again appointed to the same”; then struck out the words “being again appointed to”; then interlined “holding,” making the phrase read as he usually wrote it “incapable of holding the same.” However, the word “holding” appears also to have had a line drawn through it, though it also bears evidence of the slight smudge that TJ occasionally made in his rough drafts, as if he had run his finger over a freshly drawn line or word to expunge it. At all events, it is certain that “incapable of holding” is what he normally would have written and it is equally certain that “holding” was interlined though perhaps lined out. The point is worth noting since both the text of the Third Draft and the text of the Enquirer omit the word “holding” at this point, thus adding to the preponderant evidence that they are identical.

3The square brackets here and below in the text are in the MS.

4The words in italics were struck out, and then TJ interlined the following words at the top of the same page of MS: “nor shall there be power any where to pardon or to remit fines or punishments.” This clause was finally inserted in the next to the last paragraph under “I. Legislative,” above.

5The six lines in the MS beginning with the words “by an act of the legislature” down to and including “defined by the legislature, and for” are written on a slip of paper pasted on the MS at this point. This represents a curious omission made by TJ in copying, an omission that seems inexplicable except on the ground that the Third Draft (Wythe’s copy in NN) was copied not from the Second Draft (DLC) but from another text. As originally copied in the Third Draft, TJ caused this passage to read in part, without a break in the lines, “for breach of which they shall be removeable [end of line] the punishment of which the said legislature shall have previously prescribed certain and determinate pains. …” The First Draft includes in rough, interlined form the six lines thus omitted at the end of the line “they shall be removeable,” but in the Second Draft this passage comprises four and a half lines at the bottom of page 7 and two and a half lines at the top of page 8. It is conceivable that TJ could have accidentally skipped such a passage if it had ended at the bottom of a page or if its beginning and end coincided with the beginning and end of a line. But it is difficult to believe that he could have made this error if he had been copying from a text where the passage began in the middle of the line near the bottom of one page and ended in the middle of the line near the top of another, particularly in a case where the omission involved such a sharp break in the continuity and sense. The evidence in this instance alone is not conclusive, but taken in connection with TJ’s remarks in 1825, with the statements of Wirt and Leigh as cited in notes to the Second Draft, and other evidences given in these notes, it seems certain that the Third Draft was copied from another fair copy made from the Second Draft. At all events, the omission of this passage conclusively proves that the Third Draft is the copy that George Wythe carried to Virginia, for the Richmond Enquirer printed the six lines written on the slip of paper, but neglected to include the lines written underneath. This typographical error obviously could have occurred only in the use of the copy now in NN, which, therefore, is the copy transmitted by Wythe.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

º H. of Representatives.

º Electors.

º Elected.

º Senate.

º Administrator

º Deputy Admr.

º Privy council

º Delegates.

º Treasurer.

º Attorney Genl.

º High sheriffs &c.

º other Officers.

º County Courts &c.

º Genl. Court and High Ct. of Chancery.

º Court of Appeals.

º Juries.

º Fines &c.

º Process.

º Quorum.

º Lands.

º Slaves.

º Naturalization.

º Religion.

º Arms.

º Standing army.

º Free press.

º Forfeitures.

º Wrecks.

º Salaries.

º Qualifications.

Note: The annotations to this document, and any other modern editorial content, are copyright © Princeton University Press. All rights reserved.