VII. The Constitution as Adopted by the Convention, [29 June 1776]
VII. The Constitution as Adopted by the Convention
[29 June 1776]
In a General Convention.
Begun and holden at the Capitol, in the City of Williamsburg, on Monday the sixth day of May, one thousand seven hundred and seventy six, and continued, by adjournments to the day of June following:
a constitution, or form of government,
agreed to and resolved upon by the Delegates and Representatives of the several Counties and Corporations of Virginia.
Whereas George the Third, King of Great Britain and Ireland, and Elector of Hanover, heretofore intrusted with the exercise of the Kingly Office in this Government, hath endeavoured to pervert the same into a detestable and insupportable Tyranny; by putting his negative on laws the most wholesome and necessary for the publick good;
by denying his Governours permission to pass Laws of immediate and pressing importance, unless suspended in their operation for his 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 of 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 endeavouring to prevent the population of our Country, and, for that purpose, obstructing the laws for the naturalization of foreigners;1
by keeping among us, in times of peace, standing Armies and Ships of War;
by affecting to render the Military independent of, and superiour 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 armed 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;for suspending our own Legislatures, and 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 and confiscation;
by prompting our Negroes to rise in Arms among us, those very negroes whom, by an inhuman use of his negative, he hath refused us permission to exclude by Law;
by endeavouring 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, and Conditions of Existance;
by transporting, at this time, a large Army of foreign Mercenaries, to compleat the Works of Death, desolation, and Tyranny, already begun with circumstances of Cruelty and Perfidy 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 and Protection;
vii. text as adopted
By which several Acts of Misrule,2 the Government of this Country, as formerly exercised under the Crown of Great Britain, is totally dissolved; We therefore, the Delegates and Representatives of the good People of Virginia, having maturely considered the Premises, and viewing with great concern the deplorable condition to which this once happy Country must be reduced, unless some regular adequate Mode of civil Polity is speedily adopted, and in Compliance with a Recommendation of the General Congress, do ordain and declare the future Form of Government of Virginia to be as followeth:
The legislative, executive, and judiciary departments, shall be separate and distinct, so that neither exercise the Powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the Justices of the County Courts shall be eligible to either House of Assembly.3
The legislative shall 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.
One of these shall be called the House of Delegates, and consist of two4 Representatives to be chosen for each County, and for the District of West Augusta, annually, of such Men as actually reside in and are freeholders of the same, or duly qualified according to Law, and also of one Delegate or Representative to be chosen annually for the city of Williamsburg, and one for the Borough of Norfolk, and a Representative for each of such other Cities and Boroughs, as many hereafter be allowed particular Representation by the legislature; but when any City or Borough shall so decrease as that the number of persons having right of Suffrage therein shall have been for the space of seven Years successively less than half the number of Voters in some one County in Virginia, such City or Borough thenceforward shall cease to send a Delegate or Representative to the Assembly.
The other shall be called the Senate,5 and consist of twenty four Members, of whom thirteen shall constitute a House to proceed on Business for whose election the different Counties shall be divided into twenty four districts, and each County of the respective District, at the time of the election of its Delegates, shall vote for one6 Senator, who is actually a resident and freeholder within the District, or duly qualified according to Law, and is upwards of twenty five Years of Age; And the sheriff of each County, within five days at farthest after the last County election in the District, shall meet at some convenient place, and from the Poll so taken in their respective Counties return as a6 Senator to the House of Senators the Man who shall have the greatest number of Votes in the whole District. To keep up this Assembly by rotation, the Districts shall be equally divided into four Classes, and numbered by Lot. At the end of one Year after the General Election, the six Members elected by the first division shall be displaced, and the vacancies thereby occasioned supplied from such Class or division, by new Election, in the manner aforesaid. This Rotation shall be applied to each division, according to its number, and continued in due order annually.
The right of Suffrage in the Election of Members for both Houses shall remain as exercised at present, and each House shall choose its own Speaker, appoint its own Officers, settle its own rules of proceding, and direct Writs of Election for supplying intermediate vacancies.7
All Laws shall originate in the House of Delegates, to be approved or rejected by the5 Senate or to be amended with the Consent of the House of Delegates; except Money Bills, which in no instance shall be altered by the5 Senate but wholly approved or rejected8
A Governour,9 or chief Magistrate, shall be chosen annually, by joint Ballot of both Houses, (to be taken in each House respectively, deposited in the Conference room, the Boxes examined jointly by a Committee of each House, and the numbers severally reported to them, that the appointments may be entered, which shall be the mode of taking the joint Ballot of both Houses in all Cases)10 who shall not continue in that office longer than three Years successively, nor be eligible until the expiration of four Years after he shall have been out of that office: An adequate, but moderate Salary, shall be settled on him during his Continuance in Office; and he shall, with the advice of a Council of State, exercise the Executive powers of Government according to the laws of this Commonwealth; and shall not, under any pretence, exercise any power or prerogative by virtue of any Law, statute, or Custom, of England; But he shall, with the advice of the Council of State, have the power of granting reprieves or pardons, except where the prosecution shall have been carried on by the House of Delegates, or the Law shall otherwise particularly direct; in which Cases, no reprieve or Pardon shall be granted but by resolve of the House of Delegates.
Either House of the General Assembly may adjourn themselves respectively: The Governour shall not prorogue or adjourn the Assembly during their setting, nor dissolve them at any Time; but he shall, if necessary, either by advice of the Council of State, or on application of a Majority of the House of Delegates, call them before the time to which they shall stand prorogued or adjourned.
A Privy Council, or Council of State, consisting of eight Members, shall be chosen by joint Ballot of both Houses of Assembly, either from their own Members or the People at large, to assist in the Administration of Government. They shall annually choose out of their own Members, a President, who, in case of the death, inability, or necessary absence of the Governour from the Government, shall act as lieutenant Governour. Four Members shall be sufficient to act, and their Advice and proceedings shall be entered of Record, and signed by the Members present (to any part whereof any Member may enter his dissent) to be laid before the General Assembly, when called for by them. This Council may 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. A sum of Money11 appropriated to that purpose shall be divided annually among the Members, in proportion to their attendance; and they shall be incapable, during their continuance in Office, of sitting in either House of Assembly. Two Members shall be removed, by joint12 Ballot of both houses of Assembly13 at the end of every three Years, and be ineligible for the three next years.14 These Vacancies, as well as those occasioned by death or incapacity, shall be supplied by new Elections, in the same manner.15
The Delegates for Virginia to the Continental Congress shall be chosen annually, or superseded in the mean time by joint Ballot of both Houses of Assembly.
The present Militia Officers shall be continued, and Vacancies supplied by appointment of the Governour, with the advice of the privy Council, or recommendations from the respective County Courts; but the Governour and Council shall have a power of suspending any Officer, and ordering a Court-Martial on Complaint for misbehaviour or inability, or to supply Vacancies of Officers happening when in actual Service. The Governour may embody the Militia, with the advice of the privy Council; and, when embodied, shall alone have the direction of the Militia under the laws of the Country.
The two Houses of Assembly shall, by joint Ballot, appoint judges of the supreme Court of Appeals, and General Court, 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, incapacity, or resignation, the Governour, with the advice of the privy Council, shall appoint Persons to succeed in Office, to be approved or displaced by both Houses. These Officers shall have fixed and adequate Salaries, and, together with all others holding lucrative Offices, and all Ministers of the Gospel of every Denomination,16 be incapable of being elected Members of either House of Assembly, or the privy Council.
The Governour, with the Advice of the privy Council, shall appoint Justices of the Peace for the Counties; and in case of Vacancies, or a necessity of increasing the number hereafter, such appointments to be made upon the recommendation of the respective County Courts. The present acting Secretary in Virginia, and Clerks of all the County Courts, shall continue in Office. In case of Vacancies, either by death, incapacity, or resignation, a Secretary shall be appointed as before directed, and the Clerks by the respective Courts. The present and future Clerks shall hold their Offices during good behaviour, to be judged of and determined in the General Court. The Sheriffs and Coroners shall be nominated by the respective Courts, approved by the Governour with the advice of the privy Council, and commissioned by the Governour. The Justices shall appoint Constables, and all fees of the aforesaid Officers be regulated by law.
The Governour, when he is out of Office, and others offending against the State, either by Mai-administration, Corruption, or other Means, by which the safety of the State may be endangered, shall be impeachable by the House of Delegates. Such impeachment to be prosecuted by the Attorney General, or such other Person or Persons as the House may appoint in the General Court, according to the laws of the Land. If found guilty, he or they shall be either for ever disabled to hold any Office under Government, or removed from such Office Pro tempore, or subjected to such Pains or Penalties as the laws shall direct.
If all, or any of the Judges of the General Court, should, on good grounds (to be judged of by the House of Delegates) be accused of any of the Crimes or Offences before-mentioned, such House of Delegates may, in like manner, impeach the Judge or Judges so accused, to be prosecuted in the Court of Appeals; and he or they, if found guilty, shall be punished in the same manner as is prescribed in the preceding Clause.17
Commissions and Grants shall run, In the Name of the Common Wealth of Virginia, and bear teste by the Governour, with the Seal of the Common wealth annexed. Writs shall run in the same manner, and bear teste by the Clerks of the several Courts. Indictments shall conclude, Against the Peace and Dignity of the Common-Wealth.
A Treasurer shall be appointed annually, by joint Ballot of both Houses.
All escheats, penalties, and forfeitures, heretofore going to the King, shall go to the Common Wealth, save only such, as the Legislature may abolish, or otherwise provide for.18
The territories contained within the Charters erecting the Colonies of Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and forever 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 Virginia, except the free Navigation and use of the Rivers Potowmack and Pohomoke, with the property of the Virginia Shores or strands bordering on either of the said Rivers, and all improvements which have been or shall be made thereon. The western and northern extent of Virginia shall in all other respects stand as fixed by the Charter of King James the first, in the Year one thousand six hundred and nine, and by the publick Treaty of Peace between the Courts of Great Britain and France in the year one thousand seven hundred and sixty three; Unless by act of this legislature, one or more Territories shall hereafter be laid off, and Governments established Westward of the Allegheny Mountains.19 And no purchases of Land shall be made of the Indian Natives but on behalf of the Publick, by authority of the General Assembly.20
In order to introduce this Government, the Representatives of the People met in Convention shall choose a Governour and privy Council, also21 such other Officers directed to be chosen by both Houses as may be judged necessary to be immediately appointed. The Senate,22 to be first chosen by the people, 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 Speaker of either House shall issue Writs for new Elections.
MS (Vi); in clerk’s hand and obviously the copy ordered by the Convention on 28 June 1776 to “be fairly transcribed”; alterations and interlineations in the hand of John Tazewell. This is the identical copy sent to the printer of Purdie’s Virginia Gazette, where it was published in a Supplement to 5 July 1776; this fact is proved by symbols giving direction to the printer for capitals, lower-case letters, and italics. The first are indicated (e.g., “totally dissolved”) by three short, horizontal lines under the middle of each word; the second by a single short line similarly placed; the third by a single line underscoring all the words to be italicized. Capitalization here follows the MS rather than the printed version. Editors of historical documents who follow the general rule of attempting to print a document “as it would have been printed at the time” will, however, find this MS and its printer’s directions quite disconcerting.
This document is included here not only because it must be regarded as in part a TJ document, but also because it is essential in establishing a significant fact: that TJ’s contribution to the Virginia Constitution is greater than has been generally supposed. Wythe wrote TJ on 27 July: “To those who had the chief hand in forming it the one you put into my hands was shewn. Two or three parts of this [italics supplied] were, with little alteration, inserted in that.” Despite this reference to the inclusion of “two or three parts” of TJ’s Draft, most historians have accepted the view that the Virginia Constitution included only the preamble (though Wirt, Henry, I, 196 and K. M. Rowland, “A Lost Paper of Thomas Jefferson,” , 1st ser., I [1892–1893], 37, incidentally refer to but do not otherwise identify “the modifications introduced into the body” of the Constitution from TJ’s Draft). Indeed, TJ himself in 1825 agreed with this view: he asserted that Pendleton had informed him by letter that the members had been so long in debate upon a plan of government—“disputed inch by inch, and the subject of so much altercation and debate”—that they “could not, from mere lassitude, have been induced to open the instrument again; but that, being pleased with the Preamble to mine, they adopted it in the House, by way of Amendment to the Report of the Committee; and thus my Preamble became tacked to the work of George Mason” (TJ to Augustus B. Woodward, 3 Apr. 1825).
The fact is, however, that the Convention did “open the instrument again” and for the purpose of doing more than tacking on TJ’s preamble. When Wythe and Lee arrived in Williamsburg-on Sunday, 23 June, the Committee on the Plan of Government had, presumably, finished its labors (Fleming to TJ, 22 June). On Monday the 24th Archibald Cary for the Committee “reported a plan of government for this colony”; on Wednesday to Friday, 26 to 28 June, the Convention resolved itself into a Committee of the Whole to discuss this plan; the amendments were agreed to on the last date and the Constitution as amended ordered to be “fairly transcribed”; thus amended, it was unanimously adopted on the third reading, 29 June (Conv. Jour., May 1776, 1816 edn., p. 64, 66, 76, 78). From this it seems clear that some parts from TJ’s Draft were added by the Committee of the Whole; but see Document VII, explanatory note, where it is conjectured that the Committee may have incorporated TJ’s preamble in the missing Report. Hence by comparing the Committee Revision (Document v) and TJ’s Third Draft (Document III) with the present document it is possible to identify with more or less certainty the passages from the Third Draft that were incorporated in the Constitution. The results of such a comparison are presented in the notes below. From this it appears that there were four distinct parts of TJ’s Draft, not “two or three,” embodied in the Constitution “with little alteration” (notes 2, 18, 19, and 20); three parts that very probably had direct influence on the revisions made 26–28 June (notes 3, 16, and 17); and one part that was copied from TJ’s Draft during the amending process and later struck out (see note 3 Document VI).
1. The phrase “& raising the conditions of new appropriations of lands” which appeared in the First and Third Drafts was not adopted by the Virginia Convention, though it was retained by the Continental Congress as a permanent part of the Declaration of Independence. On 15 Aug. 1775 the Virginia Convention directed surveyors to make no surveys under “the late instructions” to the governor (see petition of George Mason, June 1774); now, faced by pressures from the Transylvania Company and other land companies, it is possible, as St. George L. Sioussat plausibly suggests (private communication to editor, 1 Mch. 1949), that the Convention may have thought it would conceivably be necessary further to alter, if not “raise” the “conditions of new appropriations of lands.” Dr. Sioussat first called attention to the omission of this phrase in the Virginia Constitution (“The Breakdown of the Royal Management of Lands in the Southern Provinces, 1773–1775,” Agricultural History, iii [1929], 67–98).
2. The TJ preamble ends at this point. Whereas TJ’s Draft had divested George III of all authority and deposed him for abuse of the “kingly office”; had abolished an office “which all experience hath shewn to be inveterately inimical to the public liberty”; and had forever prohibited the reestablishment of the royal authority in Virginia, the more conservative Convention merely dissolved the government formerly exercised under the crown in Virginia. However, it is to be noted that the Mason Plan included no preamble whatever; the one adopted from TJ’s Draft required the insertion of these transitional sentences, even though their terms are very different from those used by TJ. The remainder of this paragraph may, therefore, be properly regarded as an amendment or revision of this part of TJ’s Draft.
3. It is probable, though not conclusively demonstrable, that part of the second half of this paragraph was drawn from TJ’s Draft. The distinctive provision that no person exercising one power should be capable of appointment to the others does not occur in the Mason Plan or the Committee’s Revision, but does occur, differently phrased, in TJ’s Draft. The fact that this amendment was not brought forth in the two weeks’ prior debate, yet was included after the arrival of the one draft that incorporated such a provision, would seem to indicate the direct influence of TJ’s Draft. However, the provision that justices of the peace should be allowed to sit in the Assembly is so foreign to the ideas incorporated in TJ’s Draft that it may have been inserted by way of reaction to his more strict adherence to separation of powers; even judges of the High Court of Chancery and of the General Court, under his constitution, would only have “session and deliberative voice, but not suffrage” in the Senate.
4. MS deletes: “Delegates or,” though “Delegates or Representatives” is used elsewhere in this paragraph. This and other amendments noted below were probably made on 29 June, after this “fairly transcribed” copy was presented for the third reading.
5. MS deletes: “House of Senators.”
6. MS deletes: “Member for the House of Senators.”
7. The important matter of suffrage was retained by the Convention precisely as amended in the Committee.
8. This and the paragraph respecting the appointment of a treasurer are the only parts of the Mason Plan passed without revision beyond necessary changes in phraseology.
9. MS originally had the spelling “Governor” throughout, but in every case it was changed-possibly by the printer-to “Governour.”
10. The printer of the Virginia Gazette erred in beginning the parentheses before “which”; MS had originally closed the parenthetic part at that point, but then deleted the closing parenthesis and inserted it as given here.
11. MS deletes: “shall be.”
12. The word “joint” is interlined in hand of John Tazewell, clerk of the Convention.
13. MS deletes: “their own Board.”
14. MS deletes the following: “This shall be regularly continued by rotation, so as that no Member be removed before he hath been three Years in the Council, and.”
15. MS deletes: “as the first.”
16. The words “and all Ministers of the Gospel of every Denomination” are interlined in the hand of John Tazewell. This paragraph seems clearly to have been amended by the Convention to conform to the judicial structure set forth in TJ’s Draft, since his was the only plan to specify a court of appeals and a general court.
17. This paragraph was amended by Wythe to accord with that provision in TJ’s Draft giving the court of appeals jurisdiction over impeachments of “high offenders” and empowering the court of appeals to remove judges of the general court for misbehavior.
18. This paragraph was obviously copied from TJ’s Draft, with the addition of the words “escheats, penalties” at one place and the phrase “or otherwise provide for” at another; the substitution of “commonwealth” for “state”; and the deletion of the word “hereafter.”
19. This paragraph was copied from TJ’s Draft, almost literally, except for the following major differences: (1) the addition of the reservation of free navigation of the Potomac and Pohomoke; and (2) the elimination of the requirement that western territories should be established on “the same fundamental laws contained in this instrument, and … be free and independent of this colony and of all the world.” This, stated T. P. Abernethy, who does not identify it as TJ’s contribution to the Constitution, “was the first sweeping assertion by Virginia of her right to jurisdiction over all the land remaining within the boundaries fixed by the charter of 1609” (Abernethy, Western Lands, p. 148, where its effect on the strategy of the Indiana Company and the Articles of Confederation are also indicated).
20. Copied from another part of TJ’s Draft, though included in the same paragraph with the foregoing. However, TJ’s Draft provided that (1) no lands should be appropriated until purchased of the Indians and (2) every Indian purchase should have the authority of an act of legislature for each transaction. These two important provisos were not included in the Constitution as adopted. However, though the language is TJ’s, such a provision probably would have been included in the Constitution anyway. For on 24 June, probably as a result of what Wythe and Richard Henry Lee had learned in Philadelphia of the plans of the Indiana Company as well as for the reasons stated (that is, in response to petitions from inhabitants on the western frontiers), the Convention passed a resolution which declared “That no purchases of lands within the Chartered limits of Virginia shall be made, under any pretence whatever, from any Indian tribe or nation, without the approbation of the Virginia legislature” (, May 1776, 1816 edn., p.63; Abernethy, Western Lands, p. 147–8).
21. MS deletes: “twenty four members to be the House of Senators and.”
22. MS deletes: “House of Senators which shall continue,” and the words “to be first chosen by the people” are interlined.