Thomas Jefferson Papers

II. Second Draft by Jefferson, [before 13 June 1776]

II. Second Draft by Jefferson

[Before 13 June 1776]

A Bill for new modelling the form of government and for establishing the Fundamental principles of our future Constitution

Whereas George  king of Great Britain & Ireland and Elector of Hanover1

Be it therefore enacted by the authority of the people that the said George the third king of Great Britain <formerly holding & exercising the kingly> <power> <office within this colony be, & he is> and elector of Hanover be & he is hereby, <absolutely divested of> deposed from the kingly office <& powers within this colony> within ys. governmt. & absolutely divested of all it’s rights & powers, & that he & his descendants & all persons claimg. by or through him & all other persons whatsoever <are hereby declared> shall be & for ever remain incapable of <being again appointed to> <holding> the same; & <further> that the sd. office shall henceforth cease & be never more erected within this <government> colony.

And be it further enacted by the authority aforesaid that <the> <in lieu of those which have heretofore taken place,> the following fundamental laws & principles of government shall henceforth be established.

The Legislative, Executive, & Judicial 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.

Legislationº shall be exercised by two separate houses <who shall be called the General assembly of Virginia> to wit a house of Representatives and a house of Senators which shall be called the General assembly of Virginia.

Theº sd. house of representatives shall be composed of persons chosen by the people annually on the [ day of <December>]2 and shall have power to meet in General assembly on the [ day of <January>] following & so from time to time on their own adjournments, or at any other time when summoned by the Administrator & to continue sitting so long as they shall think the publick service requires.

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

<All persons holding> All male persons of full age & sane mind having a freehold estate in [<half> ¼ of an acre] of land in any town, or in [<50>25] acres of land in the country, & all persons resident in <this country> the colony who shall have paid scot & lot to government the last [<three> two] years shall have right to <vote> give their vote in the election of their respective representatives. and <all> every person<s> so qualified to <vote> elect, shall be capable of being elected, provided he shall have given no bribe either directly or indirectly to any elector <voting for &> and shall take an oath of fidelity to the <government, and shall> state & of duty in his office before he enters on the exercise thereof <his office>; and <shall hold> during his continuance <therein> in the said office he shall hold no <pl>3 public 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: <but> <save> that the whole number of representatives shall not exceed [300] nor be less than [150].4 for the present there shall be one representative for every [400] 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, the proportion shall be again adjusted by the house of representatives.5

The house of representatives when met shall be free to act according to their own judgments.

Theº Senate shall consist of <[15]> not less than [15] nor more than [50] members <at the least>, who shall be appointed by the house of representatives6 <and, when appointed, shall hold their offices for life>. one third of them shall be removed out of office by lot at the end of the first three years & 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 & 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 reappointed to that house. their qualifications shall be an oath of fidelity to <government> the state and of duty in their office, the being of [31] years of age at the least, and the having given no bribe<s> directly or indirectly to obtain their appointment: while in the Senatorial office they shall be incapable of holding any public post<s> of profit either themselves or by others for their use.

<with the house of Senators>

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

The Senate & the house of representatives shall each of them have power to originate & amend bills, save only that money bills shall be originated & amended by the Representatives only: <and> 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 except<for> ing murder <nor for inflicting> & excepting also those offences in the military service for which they shall think punishment of death absolutely necessary; <nor shall they have power to prescribe torture> <for> <in any case what>7 and all capital punishments in other cases are hereby abolished: nor shall they have power to prescribe torture in any case whatever; 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.8

<For>º The <exercise of the> executive powers shall be exercised <by> in manner following one person to be called the [Administrator] <who>º shall be <ap> 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 <till> to that office until he shall have been out of the <said office> same [three] years.

Underº him shall be appointed by the same house & at the same time a Deputy Administrator to assist his principal in the discharge of his office, & to succeed <to the whole powers thereof> 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 <no> the prerogatives <of>

of Dissolving, proroguing, or adjourning either house of assembly

of <Issuing> Declaring war or <making> 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 & 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 punishmts.

of creating dignities or granting rights of precedence.

but these powers shall be exercised by the legislature alone.

Aº privy Council shall be annually appointed by the house of Representatives <to consist of such number as they shall> whose duty it shall be to give advice to the Administrator when called on by him. with them the Deputy Admr. shall have session & suffrage.

Delegates. insert here9 <Delegates>

Aº Treasurer &c. see below10

Highº Sheriffs and coroners of counties shall be annually elected by those qualified to vote for representatives: <but officers of the courts of general jurisdiction> <by their respective courts> and <every> no person who shall have served as high sheriff [one] year shall be <in> capable of being re-elected to the said office in the same county till he shall have11 been out of office11 [five] years.

Allº other officers civil & 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 <right> power of transferring <the right of> <from the Administrator the> to any other persons ye. appointment <of such officers> of such officers <to any persons they may think fit> or of any of them.

<The> A Treasurer shall be appointed by the house of Representatives, who shall issue no money but by <warrant from> authority of both houses.

Delegatesº <appointed> <shall be> to represent this colony in the American Congress <shall not be e> shall be appointed when necessary by the H. of Represves. <who> after serving [two] years in that office they shall not be capable of being re-appointed to the same during an interval of [two] years.

Theº Judicial powers shall be exercised

First by County courts & other inferior jurisdictions.

Secondly by a General court & a High Court of Chancery.

Thirdly by a Court of Appeals.

Theº <justices> judges of the County courts & 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: & they shall be removeable for misbehavior by the court of Appeals.

Theº judges of the General court & 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 Court11 & [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 <some> the bar <or bars> 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 <chosen …> appointed by the house of Representves; they shall hold their offices during good behavior, for breach of which they shall be removeable 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 <of> against high offenders <to be> lodged before them by the House of representatives for such crimes as <shall be hereafter defined> shall hereafter be precisely defined by the Legislature <shall hereafter define with precision and> <pres to which th> and for the punishment of which the sd. Legislature shall have previously prescribed certain & determinate pains.] in this court the judges of the Genl. Ct. & High Ct. of Chan’y 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 vivâ voce in open court; <unless> but where witnesses are out of the colony <in which case their depositions may be used> or unable to attend <through> <by> through sickness or other invincible necessity, their depositions may be <proposed> submitted to the credit of the jury.

Allº Fines & Amercements shall be <fixed by juries and pains determined> assessed and terms of imprisonment for Contempts <shall> or misdemeanors shall be fixed by the verdict of a jury.

Allº process, original & judicial <process> shall <issue> run in the name of the court from11 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.

Unappropriatedº or Forfeited lands shall be appropriated by the Administrator <and> with the consent of the privy council

<[Fifty] acres of la>

Every <male> 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 of the crown in fee simple and those hereafter to be appropriated shall be holden <of no superior by him> in full & absolute dominion of no superior whatever.

No lands shall be appropriated until purchased of the Indian native<s> 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 <made> passed for every purchase11 specially.

The territories11 <describe> contained within the charters erecting the colonies of Maryland Pennsylvania, North & South Carolina are hereby <f> ceded <&> released and for ever confirmed to the people of those <pro> colonies respectively with all the rights of <jurisdiction and> property, jurisdiction <&> and government, and all other rights whatsoever <claimed …> 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 <described> fixed by11 the Charter of     until by act of the Legislature <any new> <a territory or> one or more territories shall be laid off Westward of the Alleganey mountains for <any> <the establishment of> new <colony or> colonies, which <colony or> colonies <when established shall be free & independent of this & shall> shall be established on the same fundamental laws contained in this instrument & shall be free & independent 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 in slavery under any pretext whatever.12

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 <a> residents & entitled to all the rights of <a> persons natural born.

Allº persons shall have full & free liberty of religious opinion: nor shall any be compelled to frequent or maintain any religious institution. <but this shall not be held to justify any seditious preaching or conversation against the authority of the civil government.>

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 commission11 of private injury they may give cause 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.13

Noº salaries or perquisites shall be given to any officer but by act of the legislature. no salaries shall be given to the Administrator, members of the <house of Representatives> Legislative houses, judges of the court of appeals, <justices of the peace, members of the privy council,> 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, <members of> Privy counsellors & Delegates for subsistence while acting in the duties of their office <shall> may be borne by the public if the Legislature shall so direct.

Theº Qualifications of all officers <Civil, military, Executi Judicial,> Civil, military & Ecclesiastical shall be an oath of fidelity to the <governm> state and the having given no bribe to obtain their office.

None of these fundamental laws & principles of government shall be repealed <or alt> or altered but by the personal consent of the people <to be> on summon<ed> s to meet in their respective counties on one & 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 <or repealed> and such repeal or alteration shall take it’s place among these fundamentals, and stand on11 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.

It is proposed that the above 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.

Dft (DLC). This MS, which Ford labels “First Draft,” was acquired by the Library of Congress in 1930, being donated by W. E. Benjamin of New York (Report of the Librarian of Congress, 1930, p. 64), who obtained it from Cassius F. Lee, Jr., of Alexandria, Va. The MS of the Third Draft, described below, and the Wythe copy of the Declaration of Independence were also at one time in the possession of Lee, (Boyd, Declaration of Independence, 1945, p. 39, 42, 43–5), from whom Ford obtained facsimiles of both the Second and Third Drafts (Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends ii, 7). However, some parts of the Second Draft became separated from the MS before it was acquired by the Library of Congress. These missing portions are noted below and the text is from Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends ii, 7. That part of the MS in DLC consists of eight pages and one tipped-in slip of paper. The present location of these missing parts is unknown. It is possible that Lee obtained the Second Draft, as he certainly did the Third, directly or indirectly from the papers of George Wythe. It is also most likely, as indicated in the notes to the Third Draft, that TJ sent more than one copy to the Virginia Convention. If so, this might explain the fact that the Second Draft became separated from the main corpus of Jefferson’s papers. Ford (ii, 7) noted that the Second Draft lacked the introductory part containing the justification for abolishing the “kingly office” and setting up new forms of government. As suggested above, in the notes to First Draft, it is very unlikely that such a preamble to the Second Draft ever existed (see footnote 1, below).

The supposition that TJ sent more than one copy of his proposed constitution to Virginia is possibly confirmed by the statements of William Wirt and B. W. Leigh. These statements have every appearance of being reliable: they were made independently, separated widely in time, and uttered by men of recognized probity, one of whom supported and the other of whom opposed Jeffersonian principles. Each flatly asserted that he had seen in the State archives at Richmond a draft of a proposed constitution of Virginia, in TJ’s handwriting, that he had submitted to the Convention in 1776 (Wirt, Henry, I, 196; B. W. Leigh, Procs. and Debates of the Va. State Conv. of 1829–1830, Richmond, 1830, p. 160). Leigh added, in the statement he made in 1830, that the MS had “long since” disappeared from the council chamber. It is known that the Third Draft of TJ’s proposed constitution was found among George Wythe’s papers at his death in 1806 (see notes to Third Draft). Wythe must, therefore, have retained this text, even though it was the fair copy, correctly docketed by TJ as a bill ready to be introduced. In view of this and of the clear indications that the Third Draft was copied from another text than our Second Draft, Wirt and Leigh must have seen some other copy in the council chamber. If so, that copy, having disappeared before 1830, is not known to be in existence. It could not have been our Second Draft (see above and note 1, below).

1The foregoing title and beginning of preamble are not in MS in DLC. Text is supplied from Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends ii, 7, where it is asserted that “This heading is written on a separate sheet, the remainder of the page being left blank.” He adds; “The rough draft [i.e., our Second Draft] has no preamble, though space was left for it.” If space was left for it and if, as shown above, this part of the text was copied from the first page of the First Draft when TJ made his fair copy or copies, there not only was no need to include the preamble in the Second Draft, but the indication is that none was intended to be placed there. The Ford facsimiles of the Second Draft in NN do not include such a page as he describes.

2The square brackets are in MS here and elsewhere in Second Draft.

3Doubtful reading.

4TJ apparently wrote “[125]” first, the number found at this point in the Third Draft

5TJ inserted square brackets before and after the phrase “house of representatives” and then struck them out.

6The two following sentences beginning “one third of them …” are written on a slip of paper containing nine lines, intended to be inserted at this point. Ford (ii, 16) inserts these sentences at a different place. Two reasons justify the insertion at this point in our Second Draft: (1) the context is suitable and the sentences coincide with the order in the Third Draft; (2) the slip of paper has at its beginning part of a cue word—“ta-tives”—and this cue word occurs only at the beginning of the line at the point indicated, the remainder of the line <, and, when … life> being struck out as indicated.

7This sentence was altered and interlined to read “torture in any case whatever,” but TJ neglected to strike out these words when the phrase was repeated below.

8At this point in the margin TJ wrote “Delegates,” but struck out the word and then added “see post.” Several other instances of the same sort occur elsewhere in the margin of Dft, but have been disregarded.

9The paragraph below beginning “Delegates to represent …” was written at the bottom of the page and TJ indicated that the paragraph on delegates was to be inserted at this point, as in Third Draft.

10Comment in note 9 applies, save that the paragraph on the Treasurer precedes that on Delegates at the bottom of the page in MS.

11Illegible; supplied from Third Draft.

12The MS of the Second Draft in DLC ends at this point; the remainder of the text is supplied from the facsimile made by Ford about 1890.

13As may be noted in the First Draft, TJ had employed the phrase “& such fooleries” in the First Draft. The Second Draft gained in dignity by the excision of these words, but their presence in the First Draft serves nevertheless to reveal the warmth of TJ’s antipathy to royal privilege and prerogative.

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 Legislative.

º Representatives

º Senate.

º Executive

º Administrator

º Deputy Admr.

º Privy council.

º Treasurer.

º Sheriffs &c.

º Other officers

º Delegates.

º iii. Judicial

º County courts

º Genl. Court & Chancery

º Court of Appeals

º Juries

º Fines.

º Process

º Quorum.

º IV. Lands.

º Slaves.

º Naturalization

º Religion

º Arms

º Standing army

º Free Presses

º Forfeitures

º Wrecks &c.

º Salaries &c.

º Qualificns. of Officers

Index Entries