Bill for Regulating the Appointment of Delegates to the Continental Congress
[12 May 1777]
Be it enacted by the General assembly of the Commonwealth of Virginia1 that there shall be annually chosen five delegates2 to act on the part of this Commonwealth in General Congress any three of whom shall have power to sit and vote. The delegates to be chosen in this present session of Assembly shall continue in office till the day of and those hereafter to be chosen at the said annual election shall enter on the exercise of their office on the day of next succeeding their election and shall continue in the same one year; unless sooner recalled or permitted to resign by General assembly; in which case another shall be chosen to serve till the end of the year in the stead of any one so recalled or permitted to resign.
Each of the said delegates for every day he shall attend in Congress shall receive eight dollars, and also fifteen pence per mile going and the same returning together with his ferriages,5 to be paid wherever Congress shall be sitting by the Treasurer of this Commonwealth out of any public monies which shall be in his hands.
Dft (Vi). In TJ’s hand and endorsed by him: “A Bill for regulating the appointment of delegates to General Congress.” Docketed in hand of John Tazewell: “1777. May 12. Read the first Time.” On recto of Dft in unknown hand is the following: “Ayes 42 Noes 40.”
The close vote on this Bill has been explained heretofore by the long-standing and bitter feeling between the factions represented by Benjamin Harrison and Richard Henry Lee. At the election of delegates by the Convention on 20 June 1776, the number had been reduced from seven to five, Harrison and Braxton had been left out, and TJ himself had been near the bottom of the list (Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends ii, 128–9; Malone, Jefferson, i, 240–1); this Ford attributes to the influence of the “Lee party,” though TJ was not an object of the maneuver (see Fleming to TJ, 27 July 1776; R. H. Lee to TJ, 3 Nov. 1776; and Burk-Girardin, Hist. of Va., iv, 225–6). Ford adds: “In turn the Harrison faction began a counter attack on R. H. Lee, but apparently first attempted to veil it under a general act of the assembly. For this purpose, May 12, 1777, they ordered the preparation of a bill regulating the appointment of delegates, and named Jefferson alone to draft it—the only case I have discovered of a single individual being so selected. He was already pledged … to a limited term of two years for this office; and a bill prepared on these lines would legislate Lee out of office‥‥ Lee … seemed to have felt no ill-will toward Jefferson for his part in the affair.” The pledge to which Ford refers is the Resolution TJ drafted while in Congress to limit service of delegates to two years and to provide rotation and continuity in a state’s delegation (see under date ca. 1 July 1776). This was probably drawn by TJ after he had prepared his proposed Constitution for Virginia, the Second Draft of which provided that delegates should be appointed when necessary, but after serving two years should not be reappointed during an interval of two years; his Third Draft altered this to “one year” in each case; neither provided for rotation or continuity. These were principles to which TJ was committed, and to imply, as Ford does, that he permitted his stand on such matters to be used by the Harrison faction requires particular comment. (1) There is no proof that the Harrison faction “ordered the preparation of a bill” to veil the attack on Lee. The Journal of the House merely states: “Ordered, that leave be given to bring in a bill ‘for regulating the appointment of delegrates to General Congress,’ and that Mr. Jefferson do prepare and bring in the same” (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1777, 1827 edn., p. 8). It is possible to interpret this as being the result of TJ’s request for leave to bring in such a bill; it is almost certain that he had the Bill already prepared when on 12 May leave was granted, for after leave was granted only three routine and apparently undebated measures were recorded in the Journal before he presented it. (2) Ford cites, but does not analyze, Campbell, Bland Papers description begins The Bland Papers: Being a Selection from the Manuscripts of Colonel Theodorick Bland, Jr. description ends , i, 57. This is a remarkable letter from John Banister, which deserves special attention because it was written on or shortly after 20 June 1777 (dated June 10, but see below), because Banister was a member of the legislature, and because he was one of those voted upon as a delegate to Congress. His testimony may, therefore, be given some weight, particularly since, in that letter, he says of R. H. Lee that “I am not very fond of that gentleman.” What Banister does explain is that Lee was left out of the delegation because of an accusation that he had, in writing, demanded rentals from his tenants in tobacco or in gold or silver specie, fearing paper emissions would depreciate (see R. H. Lee to TJ, 3 May 1779); that the inference drawn by the House was that Lee, “being in an eminent station, and one of the first guardians and trustees of the rights of America … ought not to be further entrusted with the high office he had been appointed to”; that Banister himself had opposed the measure and method of removing Lee “as a most flagrant act of injustice, and as a precedent dangerous in its nature.” (3) Lee demanded a hearing before the House, was accorded it, the Senate attended, and, on 20 June, the House voted him its thanks for the “services he has rendered his country” (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1777, 1827 edn., p. 84); shortly thereafter, Lee was elected to Congress to fill the place of George Mason, who had declined to serve (same, p. 94). (4) If the Bill was engineered by the Harrison faction, it is surprising that one of the amendments offered—that making delegates in Congress ineligible for membership in the General Assembly—should have passed; for that amendment was probably aimed at Harrison himself, who was serving out TJ’s unexpired term until 11 Aug. 1777 and who had been in attendance as a member of the legislature since 8 May (Burnett. Letters of Members, ii, lxix–lxx). (5) Finally, and conclusively, the Bill as drawn by TJ would have excluded both Lee and Harrison, for both had been elected to Congress in 1775 and again in 1776 (same). Under the Bill as amended by the Senate, and as accepted by the House with the alteration that service should be for three years successively, both Lee and Harrison were rendered eligible and both were, in fact, elected after the present Bill was passed and before the new term began on 11 Aug. 1777; both were also rendered ineligible to serve in the General Assembly while serving in Congress (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 299). There is little room for doubt that the Bill as drawn by TJ and as presented here was merely his effort to achieve by legislation what he had failed to achieve in his Drafts of a Constitution in 1776 and in his Resolution drawn up for presentation to Congress shortly thereafter to obtain limited tenure, continuity of experience, and rotation in office; his stand was grounded on a principle he had announced a year earlier. On 14–15 May 1777 TJ’s Bill was debated and amended, passing the House on 16 May; TJ carried it to the Senate and that house offered four amendments, of which the House accepted the second and fourth, amended the first, and disagreed to the third. The Senate receded from the last (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1777, 1827 edn., p. 8, 10, 13, 15, 22). TJ was undoubtedly disappointed in the emasculation of his Bill, for at the Oct. 1777 session another bill, amending the one adopted in May, was passed. This bill provided that the number of delegates should be limited to seven, of whom any three, when more than five did not attend, should be sufficient to represent the State; that no one should be eligible to serve in Congress for more than three years in any term of six; and that compensation should be increased to ten dollars per day (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 388). Ford (ii, 129) asserts that R. H. Lee procured the introduction of this amending act and that TJ was “apparently … the drafter” of it also; Lee was not a member of the legislature and, during most of the session, was in attendance at Congress. TJ, of course, was a member of the legislature at the Oct. 1777 session and the bill is similar in its first provision to that part which was deleted in May (see textual note 1); this bill was ordered to be brought in on 6 Nov. 1777 (TJ was absent from the House from 5 to 10 Nov.), and Bullitt and Meriwether were appointed to draft it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 12, 14, 24, 34–5, 62, 85, 89–90, 96, 98, 108). The probability is that TJ did not draft this bill, for on 12 Dec. 1777 the House passed the following resolution (before the Act had been adopted) and TJ, who carried it to the Senate, was probably its author: “Although it is the wish of the General Assembly, that the representation of this Commonwealth in Congress, should consist of three members at least; yet, as it may sometimes happen, from unforeseen accidents, that three may not be present, and the State thereby unrepresented, Resolved, therefore, that from this time until the end of two months after the expiration of this session of Assembly, any two of the delegates … be empowered to give the vote of this State on any question in Congress, whenever there shall happen to be none other of the said delegates attending” (same, p. 76). However, the other bill concerning representation which is definitely associated with TJ is Bill No. 10 in the Report of the Committee of Revisors (q.v., under date of 18 June 1779).
1. The phrase “of the Commonwealth of Virginia” was deleted by amendment in the House. Also, everything from this enacting clause to the end of the first paragraph was deleted, thus reducing TJ’s Bill merely to the limitation of periods of service and to compensation.
2. Dft originally read “to represent,” which was crossed out, and “to act on the part of” was interlined as a substitution.
3. This was amended by the Senate to read: “No person who shall have served three years as a member of Congress, or shall hereafter serve three years, including the time he hath heretofore served.” The House in turn amended this to read, as it does in the Act as adopted: “no person who shall have served, or shall hereafter serve, as a member of Congress for three years successively, including‥‥”
4. The House amended the Bill by inserting a paragraph rendering delegates to Congress ineligible to serve as members of either of the houses of the General Assembly.
5. The words “eight” and “fifteen pence” are in the hand of Tazewell, the spaces which they fill having been blank in Dft as presented by TJ. At this point the Act reads: “in lieu of allowances heretofore settled by law.” This had been established in 1775 at 45 shillings for each day’s attendance, plus one shilling per mile for transportation, plus ferriage costs; in 1776 the per diem was reduced to 30 shillings; and in the Oct. 1777 session, as noted above, the compensation was raised to ten dollars (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 73–74, 133–134, 388).