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Subject Area: Political Theory
Topic: The American Revolution and Constitution
Collection: Classics of Liberty

1777 - draft of a bill for providing against invasions and insurrections 1 - Thomas Jefferson, The Works, vol. 2 (1771-1779) [1905]

Edition used:

The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 2.

Part of: The Works of Thomas Jefferson, 12 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


draft of a bill for providing against invasions and insurrections1

v. s. a.

[May 10, 1777.]

For making provision against invasions & insurrections & laying the burthen thereof equally on all be it enacted by the General assembly of the Commonwealth of Virginia that the division of the militia of each county into ten parts directed by a former ordinance shall be completed & kept up in the following manner. The commanding officer of every county within one month after every general muster shall enroll under some captain such persons not before enrolled as ought to make a part of the militia, who together with those before enrolled & not yet formed into tenths & with such Quakers & Menonists as are not formed into tenths shall be such captain at his first muster after receiving the same be divided into equal parts as nearly as may be, each part to be distinguished by fair and equal lot by numbers from one to ten, & when so distinguished to be added to, and make part of the division of the militia of such county already distinguished by the same number.

And where any person subject to such allotment shall not attend, or shall refuse to draw for himself, the captain shall cause his lot to be drawn for him by some other in presence of the company.

When any officer of the militia shall receive notice of any invasion or insurrection within his own county, he shall immediately give intelligence thereof to the commanding officer of the county & if the urgency of the case requires it he shall forthwith raise the militia under his special command & proceed to oppose the enemy or insurgents: the commanding officer of the county on receiving notice thereof shall immediately if the case will admit delay or be greater than the force of his own militia may encounter, communicate the same to the Governor, by express, for which purpose he may impress boats, men & horses, & may also notify to any militia officer of the adjacent counties to be by him forwarded to his commanding officer & in the meantime if it be urging shall raise such part of his own militia as the case shall require & admit. The commanding officer of any adjacent county receiving the notice so forwarded, shall immediately raise such part of his militia, not exceeding two thirds, as the circumstances of the case may require & order them to the assistance of such adjacent county: but any of the commanding officers, if he think the case of too small consequence to require these proceedings may call a council of war to consist of a majority of his field officers & captains & take their advice whether any & what force shall be raised or sent or whether they may await the governor’s orders.

The governor on receiving such intelligence may, with the advice of the council of state cause to be embodied & marched to oppose such invasion or insurrection, such members of the militia as may be needful and from such counties as will suit the exigencies of the case; & if the corps consist of three or more battalions, may appoint a General officer to take command thereof.

The several divisions of the militia of any county shall be called into duty by regular rotation from the first to the tenth, & every person failing to attend when called on, or to send an able bodied man in his room, shall, unless there be good excuse, be considered as a deserter & suffer accordingly.

Any able bodied volunteers who will enter into the service shall be accepted instead of so many of the divisions of militia called for but if the invasion or insurrection be so near & pressing as not to allow the delay of calling for the division or divisions next in turn, the commanding officer may call on such part of the militia as shall be most convenient, to continue in duty till such division or divisions can come to supply their places.

The soldiers of such militia if not well armed & provided with ammunition shall be furnished with the arms & ammunition of the county & any deficiency in these may be supplied from the public magazines, or, if the case admit not the delay, by impressing arms & ammunition of private property, which ammunition so far as not used, & arms, shall be duly returned as soon as they may be spared & any person embezzling any such public or private arms, or not delivering them up when required by his commanding officer shall on his warrant be committed to prison without bail or mainprise there to remain till he deliver or make full satisfaction for the same.

The commanding officer shall appoint such officers of the militia as he shall think most proper to command the men called out by divisions in the following proportions: if there be called into duty not more than 15 men he shall appoint one ensign & one serjeant to command them: if not more than 25 men a lieutenant an ensign and two serjeants; if not more than 40 men, a captain, lieutenant ensign & three serjeants; if 50 men, a captain two lieutenants an ensign & four serjeants; & so in proportion for every greater number; adding, if there be several companies, such field officers as may be requisite. A distinct list of the names & numbers of officers & soldiers sent on duty, with the time they served, attested on oath by the officer commanding such party shall be certified by the commanding officer of the county to the next General assembly.

Any officer resigning his commission on being called into duty by the Governor or his commanding officer, shall be ordered into the ranks, & shall moreover suffer punishment as for disobedience of command.

The commanding officer of the corps marching to oppose any invasion or insurrection, or any commissioned officer by warrant under the hand of such commander, may, for the necessary use of such corps or for the transportation of them across waters, or of their baggage by land or water, impress provisions, vessels with their furniture, hands, wagons, carts, horses, oxen, utensils for intrenching, smiths, wheelwrights, carpenters or other artificers, & arms in the case before directed, such necessaries or the use of them by the day shall be previously appraised by two persons chosen the one by such officer & the other by the person interested, or both by the officer if the person interested shall refuse to name one and duly sworn by the said officer who is hereby empowered to administer the oath. Such officer shall give a receipt or a certificate of every particular impressed, of its appraised value, & of the purposes for which it was impressed: and if any article impressed shall receive damage while in public service such damage shall be enquired of & estimated by two men chosen & sworn in the same manner & shall be made good by the public.

All persons drawn into actual service by virtue of this act shall be exempted in their persons & property from civil process, & all proceedings against them in civil courts shall be stayed during their continuance in service.

Where any corps or detachment of militia shall be on duty with any corps or detachment of Colonial regulars or Continental troops, or both of them the Continental officers shall take command of the Colonial regulars of the same rank, & these again of militia officers of the same rank.

The commanding officer of each of the counties of Elizabeth City, Princess Anne, Northampton & Accomack, with permission from the Governor, may appoint any number of men not exceeding six in each county to keep a constant lookout to seaward by night & by day; who discovering any vessels appearing to belong to an enemy & to propose landing or hostility, shall immediately give notice thereof to some militia officer of the county, whereon such course shall be pursued as is before directed in case of an invasion or insurrection.

The pay of all officers and soldiers of the militia, from the time they leave their homes, by order of their commanding officer till they return to them again, & of all lookouts shall be the same as shall have been allowed by the last regulations of General assembly to Colonial regulars of the same rank or degree. Messengers shall be allowed by the auditors of public accounts according to the nature of their service.

Any militia officer receiving notice of an invasion or the approach of any vessel with hostile purpose, & not forwarding the same to his commanding officer shall forfeit, if a field officer one hundred pounds, if a captain or subaltern fifty pounds; any commanding officer of a county receiving such notice & not raising part of his militia nor taking the advice of his council of war two hundred pounds, recoverable with costs by action of debt in the name of the Commonwealth before any court of record, & appropriated to the same uses as the fines imposed by the courtmartial of his county.

Any officer or soldier, guilty of mutiny, desertion, disobedience of command, absence from duty or quarters, neglect of guard, or cowardice, shall be punished at the discretion of a courtmartial by degrading, cashiering, drumming out of the army, whipping not exceeding 20 lashes, fine not exceeding two months, or imprisonment not exceeding one month.

Such courtmartial shall be constituted of militia officers only, of the rank of Captains or higher, & shall consist of 7 members at the least whereof one shall be a county lieutenant or field officer, each of whom shall take the following oath: ‘I — do swear that I will well & truly try & impartially determine the cause of the prisoner now to be tried, according to the act of assembly for providing against invasions & insurrections so help me god,’ which oath shall be administered to the presiding officer by the next in command, & then by such presiding officer to the other members. The said court shall also appoint a clerk to enter and preserve their proceedings, to whom the president shall administer an oath truly and faithfully to execute the duties of his office. All persons called to give evidence shall take the usual oath of evidence, to be administered by the clerk of the court. If in any case the offender be not arrested before the corps of militia on duty be discharged, or cannot be tried for want of members sufficient to make a court, he shall be subject to be tried afterwards by the courtmartial of his county.

All other acts & ordinances so far as they make provisions against invasions & insurrections are hereby repealed.

This act shall be read to every company of the militia by order of the captain or next commanding officer twice in every year, that is to say, at their first muster next succeeding every general muster in his county on penalty of five pounds for every omission.

draft of a bill for regulating the appointment of delegates to general congress1

v. s. a.

[May 12, 1777.]

Be it enacted by the General assembly of the Commonwealth of Virginia that there shall be annually chosen five delegates to act the part of this Commonwealth in General Congress any three of whom shall have power to sit & 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 & 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.

No person who shall have served two years in Congress shall be capable of serving therein again till he shall have been out of the same one whole year.

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, to be paid whereever Congress shall be sitting by the Treasurer of this Commonwealth out of any public monies which shall be in his hands.

to john adams1

Williamsburgh, 16 May, 1777.

Matters in our part of the continent are too much in quiet to send you news from hence. Our battalions for the continental service were some time ago so far filled as rendered the recommendation of a draught from the militia hardly requisite, and the more so as in this country it ever was the most unpopular and impracticable thing that could be attempted. Our people, even under the monarchical government, had learnt to consider it as the last of all oppressions. I learn from our delegates that the confederation is again on the carpet, a great and a necessary work, but I fear almost desperate. The point of representation is what most alarms me, as I fear the great and small colonies are bitterly determined not to cede. Will you be so good as to collect the proposition I formerly made you in private, and try if you can work it into some good to save our union? It was, that any proposition might be negatived by the representatives of a majority of the people of America, or of a majority of the colonies of America. The former secures the larger, the latter, the smaller colonies. I have mentioned it to many here. The good whigs, I think, will so far cede their opinions for the sake of the Union, and others we care little for.

The journals of Congress not being printed earlier, gives more uneasiness than I would wish ever to see produced by any act of that body, from whom alone I know our salvation can proceed. In our Assembly, even the best affected think it an indignity to freemen to be voted away, life and fortune, in the dark. Our House have lately written for a manuscript copy of your journals, not meaning to desire a communication of any thing ordered to be kept secret. I wish the regulation of the post-office, adopted by Congress last September, could be put in practice. It was for the travel night and day, and to go their several stages three times a week. The speedy and frequent communication of intelligence is really of great consequence. So many falsehoods have been propagated that nothing now is believed unless coming from Congress or camp. Our people, merely for want of intelligence which they may rely on, are become lethargic and insensible of the state they are in. Had you ever a leisure moment, I should ask a letter from you sometimes, directed to the care of Mr. Dick, Fredericksburgh; but having nothing to give in return, it would be a tax on your charity as well as your time. The esteem I have for you privately, as well as for your public importance, will always render assurances of your health and happiness agreeable. I am, dear sir, your friend and servant.

to benjamin franklin1

Virginia, August 13, 1777.

Honorable Sir,

—I forbear to write you news, as the time of Mr. Short’s departure being uncertain, it might be old before you receive it, and he can, in person, possess you of all we have. With respect to the State of Virginia in particular, the people seem to have laid aside the monarchical, and taken up the republican government, with as much ease as would have attended their throwing off an old, and putting on a new suit of clothes. Not a single throe has attended this important transformation. A half-dozen aristocratical gentlemen, agonizing under the loss of pre-eminence, have sometimes ventured their sarcasms on our political metamorphosis. They have been thought fitter objects of pity, than of punishment. We are, at present, in the complete and quiet exercise of well-organized government, save only that our courts of justice do not open till the fall. I think nothing can bring the security of our continent and its cause into danger, if we can support the credit of our paper. To do that, I apprehend, one of two steps must be taken. Either to procure free trade by alliance with some naval power able to protect it; or, if we find there is no prospect of that, to shut our ports totally, to all the world, and turn our colonies into manufactories. The former would be most eligible, because most conformable to the habits and wishes of our people. Were the British Court to return to their senses in time to seize the little advantage which still remains within their reach, from this quarter, I judge, that, on acknowledging our absolute independence and sovereignty, a commercial treaty beneficial to them, and perhaps even a league of mutual offence and defence, might, not seeing the expense or consequences of such a measure, be approved by our people, if nothing, in the mean time, done on your part, should prevent it. But they will continue to grasp at their desperate sovereignty, till every benefit short of that is forever out of their reach. I wish my domestic situation had rendered it possible for me to join you in the very honorable charge confided to you. Residence in a polite Court, society of literati of the first order, a just cause and an approving God, will add length to a life for which all men pray, and none more than your most obedient and humble servant.

to john adams

Albemarle in Virga, Aug. 21, 1777.

Dear Sir,

—Your favor of May 26 came safely to hand. I wish it were in my power to suggest any remedy for the evil you complain of, tho’ did any occur I should propose it to you with great diffidence after knowing you had thought on the subject yourself. There is indeed a fact which may not have come to your knolege out of which perhaps some little good may be drawn. The borrowing money in Europe (or obtaining credit there for necessaries) has already probably been essayed & it is supposed with some degree of success. But I expect your applications have as yet been only to France, Holland, or such other states as are of principal note. There is however a small power, well disposed to our cause, &, as I am informed, possessed of abilities to assist us in this way. I speak of the Grand Duke of Tuscany. The little states of Italy you know have had long peace, & shew no disposition to interrupt that peace shortly. The Grand Duke being somewhat avaricious in his nature has availed himself of the opportunity of collecting & hoarding what money he has been able to gather. I am informed from good authority (an officer who was concerned in the business of his treasury1 ) that about three years ago he had ten millions of crowns, lying dead in his coffers. Of this it is thought possible as much might be borrowed as would amount to a million of pounds lawful money. At any rate the attempt might be worth making. Perhaps an application from Dr. Franklin who has some acquaintance in that court might be sufficient, or, as it might be prudent to sound well before the application, in order to prevent the discredit of a rebuff, perhaps Congress would think it worth while to send a special agent there to negotiate the matter. I think we have a gentleman here who would do it with dexterity & fidelity. He is a native of that Duchy; well connected there, conversant in courts of great understanding & equal zeal in our cause. He came over not long since to introduce the cultivation of vines, olives, &c among us. Should you think the matter worth a further thought, either of the Cols. Lees to whom he is known can acquaint you more fully of his character. If the money can be obtained in specie it may be applied to reduce the quantity of circulating paper & be so managed as to help the credit of that which will remain in circulation. If credit alone can be obtained for the manufactures of the country, it will still help to clothe our armies or to increase at market the necessaries our people want.

What upon earth can Howe mean by the manœuvre he is now practicing? There seems to me no object in this country which can be either of utility or reputation to his cause. I hope it will prove of a piece with all the other follies they have committed. The forming a junction with the Northern army up the Hudson’s river, or taking possession of Philadelphia might have been a feather in his cap, & given them a little reputation in Europe. The former as being the design with which they came, the latter as being a place of the first reputation abroad & the residence of Congress. Here he may destroy the little hamlet of Wmsbgh, steal a few slaves, & lose half his army among the fens & marshes of our lower country or by the heat of the climate. I am, dear sir, yours, &c.

first report of conference committee1

Thursday, Dec. 4, 1777.

Mr. Jefferson reported, from the Committee appointed to draw up what is proper to be offered at the conference proposed with the Senate, on the subject matter of their amendments to the resolution of this House for paying to Thomas Johnson the sum of 15£ 5s 6d. that the committee had accordingly drawn up what they think would be proper to be offered at the said conference, which they had directed him to report to the said House; he read the report in his place, and afterwards delivered it in at the clerks table, where the same was read and is as followeth, viz:

The House of Delegates has desired this conference, in order to preserve that harmony and friendly correspondence with the Senate, which is necessary for the discharge of their joint duties of legislation, and to prevent, both now and in future, the delay of public business, and injury which may accrue to individuals, should the two Houses differ in opinion as to the distinct office of each.

Though during the course of the last two, and also of the present session of Assembly, they have acquiesced, under some amendments made by the Senate to votes for allowing public claims and demands, yet they are of opinion that an adherence to fundamental principles is the most likely way to save both time and disagreement; and a departure from them may at some time or other be drawn into precedent for dangerous innovations, and that therefore it is better for both Houses, and for those by whom they are entrusted, to correct the error while new, and before it becomes inveterate by habit and custom.

The constitution having declared that “money bills shall in no instance be altered by the Senate, but wholly approved or rejected,” the delegates are of opinion the Senate had no authority to amend their late vote for allowing to Thomas Johnson the sum of fifteen pounds five shillings and six pence; and should the term “money bills” in the constitution not immediately convey the precise idea which the framers of that act intended to express, it is supposed that its explanation should be sought for in the institutions of that people, among whom alone a distinction between money bills and other acts of legislation is supposed to have been made, and from whom we, and others, emigrating from them, have indisputably copied it.

By the law and usage of their parliament then, all those are understood to be “money bills” which raise money in any way, or which dispose of it, and which regulate those circumstances of matter, method and time, which attend as of consequence on the right of giving and disposing. Again the law and customs of their parliament, which include the usage as to “money bills” are a part of the law of their land; our ancestors adopted their system of law in the general, making from time to time such alterations as local diversities required; but that part of their law which relates to the matter now in question, was never altered by our legislature, in any period of its history; but on the contrary, the two Houses of Assembly, both under our regal and republican governments, have ever done business on the constant admission that the law of parliament was their law. When the delegates, therefore, vote that fifteen pounds five shillings and six pence, whether raised or to be raised on the people shall be disposed of in payment to Thomas Johnson for losses sustained by him on the public behalf, this is a vote for the disposal of money, which the Senate are at liberty to approve or reject in the whole, but cannot amend by altering the sum.

The delegates, therefore, hope that the Senate will concur with them in a strict and mutual observance of those laws by which both houses are bound, and they are well assured, that this subject being properly stated to the Senate, they will forbear in future, to exercise a practice which seems not authorised, but, if there should be found any difference of opinion on this point, the delegates will be ready to join in any regular proposition for defining with precision, the subject of their difference, so as to prevent all doubts and delays in future.

[1 ]The House of Delegates gave leave May 9, 1777, to introduce this bill and named Jefferson, Fleming, and Braxton to draw it. The former reported it on May 10th, when it was read for the first time. On May 16th and 18th, it was considered in the Committee of the Whole, and ordered to be engrossed, and on May 21st, it was passed. This is printed from the draft in Jefferson’s handwriting, and varies considerably from the Act as printed in the Session Acts for May, 1777, p. 13; The Report of the Revisers, p. 6; A Collection of the Public Acts of Virginia, 1785, p. 52; and Hening, x., 294.

[1 ]The delegation of Virginia in the Continental Congress was the origin of in tense factional struggle and intrigue in both the Congress and in the House of Delegates. John Adams states (Works, iii., 31): “Jealousies and divisions appeared among the delegates of no State, more remarkably than among those of Virginia.” In the Virginia Assembly, R. H. Lee had antagonized the planter interest, by his course on the accounts of Treasurer Robinson, and that class had set up Benjamin Harrison as their representative. In 1776, by the influence and votes of the Lee party, Harrison and Braxton were left out of the delegation, by means which a member of the neutral party (Pendleton) claimed to be “disgraceful.” The former on his return to Virginia secured an election to the vacancy caused by the resignation of Jefferson; but on Wythe’s retirement, the Lees succeeded in filling his seat with one of their own interest, Mann Page. 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, by his resolution offered in the Continental Congress (ante, p. 220), to a limited term of two years for this office; and a bill prepared on these lines would legislate Lee out of office. On May 12th, he reported this draft of a bill, and after a severe struggle, it was committed to the Committee of the Whole by a vote of only 42 to 40. It was here discussed and amended on the 14th and 15th, and on the 16th, was passed by the Delegates. In the Senate, it was amended and returned; on May 21st, the Delegates amended the Senate amendments, which were concurred in by the Senate, and it became a law. Lee, though “it was impossible . . . to avoid feeling the immediate ill treatment that I had received” “from a wicked industry, the most false and most malicious that the deceitful heart of man ever produced,” seemed to have felt no ill-will toward Jefferson for his part in the affair. He returned to Virginia to secure an election to the House of Delegates, “was left out of the last chosen convention, but . . . harangued the people of the back Country, in the field & bought off one of their representatives to decline, payed his fine, to procure His return in his stead. Returned to the convention, His Brothers, by threats & Cabals, procured his appointment to General Congress.”—(Stevens MSS. No. 277.) At the same session of the legislature, he secured the introduction of a new bill dealing with this question, of which apparently Jefferson was likewise the drafter, and which is printed in the Session Acts for 1778, p. 20, and in the Report of the Revisers, p. 9 Cf. The Bland Papers, i., 57. The text of the present bill as amended and adopted is given in the Session Acts for 1777, p. 17, and in Hening, x., 383.

[1 ]From the Works of John Adams, ix., 465.

[1 ]From Washington’s edition of Jefferson’s Writings.

[1 ]Mazzei.

[1 ]This and the following paper are from the Journal of the House of Delegates.