V. The Mason Plan as Revised by the Committee
[22 June 1776]
Laid before [a] committee of the House, [appointed to
prepare a form of Government] which they
have ordered to be printed for the perusal
of the members.
1. Let the legislative, executive, and judicative departments, be separate and distinct, so that neither exercise the powers properly belonging to the other.
2. Let the legislative be formed of two distinct branches, who, together, shall be a complete legislature. They shall meet once, or oftener, every year, and shall be called the general assembly of virginia.1
3. Let one of these be called the Lower House of Assembly, and consist of two delegates, or representatives, [for each county, one for the Town of Jas. City, one for the city of Wmsbg. one for the W & Mary college, & one for the borough of Norfolk, to be chosen annually of such men as are freeholders and in other respects qualified according to law and ancient usage.]
4. Let the other be called the Upper House of Assembly, and consist of twenty four members; [of whom 12 shall constitute a house to proceed on business] for whose election, let the different counties be divided into twenty four districts, and each county of the respective district, at the time of the election of its delegates for the Lower House, choose twelve deputies, or sub-electors, being freeholders residing therein, [And not be a delegate or representative of the lower house] and having an estate of inheritance of lands within the district of at least five hundred pounds value. In case of dispute, the qualifications to be determined by the majority of the said deputies. Let these deputies [or any nine from each and every county] choose [annually], by ballot, one member for the Upper House of Assembly, who is a freeholder [residing in] the district.2
5. Let the right of suffrage, both in the election of members for the Lower House, and of deputies for the districts, [remain as exercised at present and let each house settle its own rules of proceding, & direct writs of election for supplying intermediate vacancies.]
6. Let all laws originate in the Lower House, to be approved, or rejected, by the Upper House, or to be amended with the consent of the Lower House, except money bills, which in no instance shall be altered by the Upper House, but wholly approved or rejected.
7. Let a Governour, or chief magistrate, be chosen annually, by joint ballot of both Houses; who shall not continue in that office longer than three years successively, and then be ineligible for the next [four] years. Let an adequate, but moderate salary, be settled on him, during his continuance in office; and let him, with the advice of a Council of State, exercise the executive powers of government, and of granting reprieves or pardons, except in cases [hereinafter mentioned] where the prosecution shall have been carried on by the Lower House of Assembly, [or where the laws shall otherwise particularly direct, unless the lower house of assembly shall address the Govr. or commr. for such reprieve or pardon.]
[Let each house of the general assembly adjourn themselves respectively. Let not the governor, or commander in chief adjourn, prorogue, or dissolve them: but let him, if necessary, by advice of the council of state, or on application of the majority of the lower house call them before the time to which they shall stand adjourn’d.]3
8. Let a Privy Council, or Council of State, consisting of eight members, be chosen by joint ballot of both Houses of Assembly, [taken in the lower house, either] from their own members, or the people at large, to assist in the administration of government. Let the Governour be President of this Council; but let them annually choose one of their own members, as Vice-President, who, in case of the death [inability or necessary] absence of the Governour, shall act as Lieutenant-Governour. Let [four] members be sufficient to act, and their advice be entered of record, [and sign’d by the members giving such advice, to be laid before the general assembly when called for by them, but let not this be done, but on extraordinary occasions.] Let them appoint their own clerk, who shall have a salary settled by law, and take an oath of secrecy, in such matters as he shall be directed by the Board to conceal. Let a sum of money, appropriated to that purpose, be divided annually among the members, in proportion to their attendance; and let them be incapable, during their continuance of office, of sitting in either House of Assembly. Let two members be removed, by ballot of their own Board, at the end of every three years, and be ineligible for the three next years. Let this be regularly continued, by rotation, so as that no member be removed before he hath been three years in the Council; and let these vacancies, as well as those occasioned by death or incapacity, be supplied by new elections, in the same manner as the first.
[9. Let the delegates for Virginia to the Continental congress be chosen annually or superseded in the mean time by joint ballot of both houses of assembly. Let the present militia officers be continued and vacancies supplyed by appointmt. of the governour or commander in chief, with advice of the privy council, on recommendation of the county courts of double the number of officers immediately necessary, but let the govr. & council have a power of displacing any officer, on complaint for misbehaviour or inability, or to supply vacancies of officers happening when in actual service. Let the govr. embody the militia with the advice of the privy council, and when embodied, let the govr. alone have the direction of the militia, under the laws of the country.]4
10. Let the two Houses of Assembly, by joint ballot, appoint judges of the supreme court, [superior courts,] judges in chancery, judges of admiralty, [secretary,] and the attorney-general, to be commissioned by the Governour, and continue in office during good behaviour. In case of death [resignation,] or incapacity, let the Governour, with the advice of the Privy Council, appoint persons to succeed in office pro tempore, to be approved or displaced by both Houses. Let these officers have fixed and adequate salaries, and [together with all others holding lucrative offices] be incapable of having a seat in either House of Assembly, or in the Privy Council, except the treasurer, who may be permitted to a seat in the Lower House of Assembly.
11. [12. Let the govr. or comr. in chief, with the advice of the privy council appoint justices of the peace for the counties, and, in case of Vancies, or a necessity of increasing the number, let double the number of magistrates requisite be recommended by the courts, & such as may be necessary appointed by the govr. or commr. in chief with the advice of the privy council. Let the present acting secretary in Virga. & clerks of all the courts continue in office. In case of vacancies, either by death, incapacity or resignation, let a secretary be appointed as before directed, & all the clerks by the respective courts. Let the present & future clerks hold their offices during good behaviour to be judged & determined in the supreme court. Let the sherifs & coroners be nominated by the respective courts, approv’d by the Govr. or commr. in chief, with the advice of the privy council, & commissioned by the govr. Let the justices appoint constables, and all fees of the aforesd. officers be regulated by Law.]5
12. [11. Let the Govr. when he is out of office, and all other offenders agt. the State, either by mal-administration, corruption or other means, by which the safety of the state may be endangered, be impeached by the lower house of assembly, such impeachmt. to be prosecuted by the attny. genl. or such other person or persons as the house may appoint, in the supreme court of common law, according to the laws of the land, if found guilty.6 Let him or them be either forever disabled to hold any office under government, or remov’d from such office pro tempore, or subjected to such pains & penalties as the law shall direct. If all or any of the judges of the supreme court of common law shall on good grounds to be judged of by the lower house of assembly, be accused of any of the crimes or offences before mentioned, let such lower house impeach the judge or judges so accused before the upper house of assembly, & thereupon let such upper house appoint commissioners for the trial of the accused in such manner as the law shall direct.]7
13. Let commissions [& grants] run in the name of the Commonwealth of Virginia, and be [at]tested by the Governour, with the seal of the commonwealth annexed. Let writs run in the same manner, and be [at]tested by the clerks of the several courts. Let indictments conclude, Against the peace and dignity of the commonwealth.
14. Let a treasurer be appointed annually, by joint ballot of both Houses.
15. In order to introduce this government, let the representatives of the people, met in Convention, choose twenty four members to be an upper House; and let both Houses, by joint ballot, choose a Governour and Privy Council; the Upper House to continue until the last day of March next, and the other officers until the end of the succeeding session of Assembly. In case of vacancies, the President to issue writs for new elections.8
Two-page printed leaflet (DLC), Sabin 100027 (same copy as in Document iv), bearing numerous cancellations and marginalia by William Fleming, together with a MS on a separate page (also DLC: TJ Papers, 235: 42207) containing four paragraphs, in Fleming’s hand, to be substituted for those deleted in the Mason Plan by the Committee. These were enclosed in Fleming’s letter to TJ, 22 June 1776. That letter enables us to assign to this revision an exact date, indeed an exact hour: at the time the bell rang for the Convention to meet on 22 June, the status of revision of the Mason Plan by the Committee was as here printed. At this time the Committee had been engaged in discussing and amending the Mason Plan for “about a fortnights time.” Some additional amendments were subsequently made by the Committee, by the Committee of the Whole, or by the Convention. Nevertheless, this precisely dated revision, made toward the close of the Committee’s labors and just a day prior to the arrival of George Wythe carrying TJ’s Third Draft, provides a fortuitous base line for identifying the amendments and additions drawn by the Convention from TJ’s Draft. The marginalia or interlineations in the leaflet in the handwriting of Fleming are identified here by supplied square brackets; those on the separate page are also enclosed in brackets and noted in footnotes 3, 4, 5, and 7.
1. Opposite paragraphs 1, 2, and 6 Fleming drew a bracket and added the word “Agreed.” It is almost certain that he did this for paragraph 14 also: the bracket is present, but the writing in the margin is illegible. Paragraph 14, as this indicates, remained substantially unchanged and was adopted by the Convention.
2. The remainder of this paragraph in the printed Plan, struck out by the Committee, was restored in large part by subsequent amendment in Committee of the Whole or in Convention.
3. This amendment was written on the separate sheet which Fleming sent along with the printed Plan, opposite which he wrote: “Between the 7th & 8th article add this clause or article.”
4. Paragraph 9 in the Mason Plan (appointment of militia officers) was struck out by the Committee. On the separate sheet Fleming transcribed this paragraph which the Committee substituted for paragraph 9 in the Mason Plan.
5. Following the first sentence in the Mason Plan as printed, a sentence concerning vacancies was at one point inserted in the margin, with the following comment: “(Once agreed to by the committee, & afterwards rejected.)” The whole paragraph was then struck out and a new paragraph substituted on the separate sheet. This paragraph was then renumbered “12” by Fleming, and paragraph 12 in the Mason Plan was renumbered “11.”
6. Thus in ms. The passage obviously should read: “according to the laws of the land. If found guilty, let him,” &c.
7. Paragraph 12 of the Mason Plan was at one point amended by the insertion of the words “when he is out of office” after “Let the Governour”; then Fleming crossed out the whole and on the separate sheet rewrote and renumbered the paragraph as given here.
8. Only one change in this paragraph was indicated by Fleming, since this section was being discussed by the Committee as he was writing to TJ on 22 June. This change was the elimination of the word “now” before “met in Convention,” an alteration indicating that some members of the Convention may have shared TJ’s view that the Convention itself lacked the power to promulgate a substantive law; also, as amended, Mason’s proviso that the Convention itself should choose the first members of the Senate was dropped. Both the Declaration of Rights and the Virginia Constitution as adopted had the status of ordinances. TJ drafted his constitution as a legislative bill, but he included the proviso that it should be submitted to the electors for approval, whereas the Constitution of Virginia, as adopted by the Convention, remained merely an ordinance until revised in 1829–1830. This was the cause of much of TJ’s long-continued opposition to it.