In the spring of 1776, the Continental Congress recommended that each colony create a new government “under the authority of the people” [for] “the defence of their lives, liberties, and properties.”1 On May 6, the Virginia House of Burgesses convened the 5th Virginia Convention at Williamsburg to determine the colony’s course of action. On May 15, two resolutions were passed:
“Resolved, unanimously, that the Delegates appointed to represent this Colony in General Congress be instructed to propose to that respectable body to declare the United Colonies free & independent states … [and] Resolved, unanimously, that s committee be appointed to prepare a Declaration of Rights & such a plan of Government as will be most likely to maintain peace & order in this Colony, & secure substantial & equal liberty to the people.”2
Two days later, a committee was appointed to begin work on the declaration. Archibald Cary served as the chairman for the committee “consisting of over thirty members.”3 Some notable members of the committee were Patrick Henry, Richard Bland and John Blair. The next day James Madison was added to the committee. One day later, George Mason arrived, but was not added to the committee until May 18.4 Many believed that Mason had the most profound understanding of republican government in the colony and of the legislative and political history of England; as a result he became the writer for the committee.
On May 24, Mason presented his draft to the committee. Many of his original ten paragraphs were taken from either Mason’s Fairfax Resolves of July 18, 1774, the Proceedings of the Fairfax County Committee of Safety on January 17, 1775 or his Remarks on Annual Elections the Fairfax Independent Company of Volunteers, circa April 17 thru 26, 1775.5 For example:
- The phrase, “all men are born equally free and independent” appears verbatim in Remarks on Annual Elections for the Fairfax Independent Company of Volunteers.”
- “power is … derived from the People” appears in the same document as “the most effectual means that human wisdom hath ever devised, is so frequently appealing to the body of the people … from whom authority originated.”
- “that all Men … cannot be taxed or deprived of their Property for public uses, without their own Consent, or that of their Representative, so elected” appears in the Fairfax Resolves as “the fundamental Principle of the People’s being governed by no Laws, to which they have not given their Consent, by Representatives freely chosen by themselves.”
- “a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free state; that standing armies in time of peace should be avoided, as dangerous to liberty” appears in the Proceedings of the Fairfax County Committee of Safety as “a well regulated militia, composed of gentlemen freeholders … is the natural strength and only stable security of a free Government, and that such Militia …will render it unnecessary to keep Standing Armies among us – ever dangerous to liberty.”
- “that Government is, and ought to be, instituted for the common Benefit and Security of the people , Nation, or Community” appears in the Remarks on Annual Elections for the Fairfax Independent Company as “Every society, all government, and every kind of civil compact therefore, is or ought to be, calculated for the general good and safety of the community.”
- “that no Men, or Set of Men, are entitled to exclusive or separate … Privileges … but in Consideration of public Services; which not being descendible, or hereditary” appears in also in the Remarks as “By investing our officers with a power for life, or for an unlimited time, we are acting diametrically contrary to the principles of that liberty for which we profess to contend.”
Over the next couple of days, changes were made by the committee: two paragraphs were added by Thomas Ludwell Lee, protection for the press and the right to equal treatment under the law; Patrick Henry recommended deleting the prohibition of bills of attainder; and James Madison expanded Mason’s statement calling for “the fullest toleration in the exercise of religion” to “the free exercise of religion, according to the dictates of conscience.” Madison’s change was significant. It made the freedom of conscience a right – a right of all men rather than a dispensation conferred by an established authority on the chosen few. Other paragraphs were added banning excessive bail, the use of cruel and unusual punishment, and the issuing of general warrants. The final draft read as follows:
A Declaration of Rights, made by the Representatives of the good People of Virginia, assembled in full Convention; and recommended to Posterity as the Basis and Foundation of Government.
I. That all Men are born equally free and independent, and have certain inherent natural Rights, of which they can not by any Compact, deprive or divest their Posterity; among which are the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursueing and obtaining Happiness and Safety.
II. That Power is, by God and Nature, vested in, and consequently derived from the People; that Magistrates are their Trustees and Servants, and at all times amenable to them.
III. That Government is, or ought to be, instituted for the common Benefit and Security of the People, Nation, or Community. Of all the various Modes and Forms of Government, that is best, which is capable of producing the greatest Degree of Happiness and Safety, and is most effectually secured against the Danger of mal-administration. And that whenever any Government shall be found inadequate, or contrary to these Purposes, a Majority of the Community had an indubitable, inalienable and indefeasible Right to reform, alter or abolish it, in such Manner as shall be judged most conducive to the Public Weal.
IV. That no Man, or Set of Men are entitled to exclusive or seperate Emoluments or Privileges from the Community, but in Consideration of public Services; which not being descendible, or hereditary, the Idea of a Man born a Magistrate, a Legislator, or a Judge is unnatural and absurd.
V. That the legislative and executive Powers of the State should be separate and distinct from the judicial; and that the Members of the two first may be restrained from Oppression, by feeling and participating the Burthens of the People; they should, at fixed Periods be reduced to a private Station, and return to that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections.
VI. That elections of members to serve as representatives of the people in the legislature ought to be free, and that all men, having sufficient evidence or permanent, common interest with and attachment to the community, have the right of suffrage, and cannot be taxed, or deprived of their property for public uses, without their own consent, or that of their representatives, so elected, nor bound by any law to which they have not, in like manner, assented for the common good.
VII. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.
VIII. That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can be compelled to give evidence against himself; and that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
IX. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
X. That in all controversies respecting Property, and in Suits between Man and Man, the ancient Tryal by Jury is preferable to any other, and to be held sacred.
XI. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.
XII. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free state; that standing armies in time of peace should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.
XIII. That no free Government, or the Blessings of Liberty can be preserved to any People, but by a firm adherence to Justice, Moderation, Temperance, Frugality, and Virtue and by frequent Recurrence to fundamental Principles.
XIV. That Religion, or the Duty which we owe to our Creator, and the Manner of discharging it, can be governed only by Reason and Conviction, not by Force or Violence; and therefore that all Men should enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience, unpunished and unrestrained by the Magistrate, unless, under Colour of Religion, any Man disturb the Peace, the Happiness, or Safety of Society. And that it is the mutual Duty of all, to practice Christian Forbearance, Love and Charity towards Each other.
What made the document different from anything that had been previously written in the colonies was that it was not a petition or remonstrance to a sovereign whom they had just renounced but rather, it was a forward looking document that identified precepts that should govern the exercise of power and serve as a basis and foundation for a future government.6
On May 27, the declaration was read to the convention. Afterwards, it was decided that the delegates would be given two days to study the draft before an open discussion would begin. On the 29th and for the next two weeks, the declaration was discussed in detail. The single biggest change came from Edmund Pendleton. He recommended that the phrase “that all men are by nature equally free and independent, and have certain inherent rights, of which, they cannot, by any compact, deprive or divest their posterity” to read “that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity.”7 In the political thought of Virginians at that time, slaves were considered to be outside “a state of society;” by adding the new phrase the Declaration would not apply to them. On June 12, the Declaration of Rights was passed unanimously. 8
Little did any of the delegates realize that the Virginia Declaration of Rights would influence Thomas Jefferson when he drafted the Declaration of Independence, the Constitutional Convention in 1787, James Madison when he drafted the Bill of Rights, and the French National Assembly when they drafted the French Revolution’s Declaration of the Rights of Man and of the Citizen.
Influence on the Declaration of Independence
Jefferson changed “All men are born equally free“ to “All men are created equal;” Man’s “inalienable rights“ became “unalienable rights;” and “The enjoyment of life and liberty, with the means of possessing property, and pursuing and obtaining happiness and safety” became the enjoyment of “life, liberty, and the pursuit of happiness.” Just as Jefferson freely used George Mason’s words, so George Mason freely used John Locke’s words.
Influence on the U.S. Constitution
Mason was determined to preserve the sovereignty of the states and the liberty and dignity of men. Since the legislative branch makes, the executive executes and the judicial interprets the law, he hoped to better define and limit the powers of the legislative branch, because to do so would ipso facto define and limit executive and judicial powers. As the Constitutional Convention was winding down, Mason realized that no limitation(s) had been inserted into the Constitution. Before September 12, 1787, Mason was able to get the Committee of Style to insert the words “herein granted“ into Article I of the Constitution so that the Congress should be expressly limited to the powers defined in the Constitution. Mason laid low until his two precious words were passed over by the Committee of the Whole on the morning of September 12. With the Congress limited now for the first time he proposed his Bill of Rights on the afternoon of September 12. Of what possible value would a Bill of Rights be, tacked on to a Constitution without limitation of powers? The Bill of Rights was voted down by the unanimous votes of the states as “unnecessary“ and with merciless ridicule. Mason refused to sign the Constitution. The first six words of his “Objections“ were “There is no declaration of rights!”9
Influence as a Bill of Rights
After the Declaration of Independence, each colony assumed statehood and adopted a Bill of Rights. Most copied the Virginia Declaration of Rights. Benjamin Franklin made a few slight changes and a few additions and the Virginia Declaration of Rights became the Pennsylvania Bill of Rights. Similar action was taken by Vermont, New Hampshire, New York, Delaware, Rhode Island, Maryland and North Carolina. Even John Adams “was highly influenced” when he wrote the Massachusetts Bill of Rights; it was only Mason’s freedom of religion that he was uncomfortable with. The Massachusetts Declaration of Rights provided for the free exercise of religion among Christians “of any one sect or denomination,” however, it did not guarantee freedom of conscience for non-Christians.10
By the time the last cannonade of the Revolution sounded, every state either had fashioned a separate bill of rights or had passed statutes with similar provisions. In a good many cases the work was done with scissors, pastepot, and a copy of the Virginia Declaration – a fact that did not escape Mason’s notice.11
The Virginia Declaration of Rights was a seminal work in the history of America. In the document, man stood dignified and free, a master of his own government and his own destiny; the powers of government were separated; and freedom of the press was granted its rightful status. William C. Rives described the Declaration as
A condensed, logical, and luminous summary of the great principles of freedom inherited by us from our British ancestors; the extracted essence of Magna Carta, the Petition of Rights, the acts of Long Parliament, and the doctrines of the Revolution of 1866 as expounded by Locke, – distilled and concentrated through the alembic of [Mason’s] own powerful and discriminating mind. There is nothing more remarkable in the political annals of America than this paper. It has stood the rude test of every vicissitude.12
Edmund Randolph and James Madison said the declaration had two purposes: that the legislature “should not … violate any of [its] canons” and that “in all the revolutions of time, of human opinion, and of government, a perpetual standard should be erected, around which the people might rally and by a notorious record be forever admonished to be watchful, firm, and virtuous.”13 These words still resonate today – just look at the United Nations Universal Declaration of Human Rights.14
1 “Preamble to Resolution on Independent Governments, 15 May 1776,” in The Adams Papers, February–August 1776, ed. Robert J. Taylor (Cambridge, MA: Harvard University Press, 1979), 4:11–12.
2 Hugh Blair Grigsby, Virginia Convention, May 1776 (Richmond, VA: J. W. Randolph, 1855), 17-18.
3 Ibid., 19.
4 David J. Mays, Edmund Pendleton, 1721 – 1803 (Cambridge, MA: Harvard University Press, 1952), 2:120.
5 Philip P. Kurland and Ralph Lerner, ed., The Founders Constitution: Major Themes (Indianapolis: Liberty Fund, 1986), 1:633-4; Robert A. Rutland, ed., The Papers of George Mason, 1725 -1792 (Chapel Hill: University of North Carolina Press, 1970), 1: 229-232.
6 Helen Hill Meyer, George Mason, Constitutionalist (Boston: Harvard University Press, 1938), 140; Henry Mayer, The Son of Thunder: Patrick Henry and the American Republic (New York: Grove Press, 1991), 299.
7 David J. Mays, Edward Pendleton, 1721 – 1803 (Cambridge: Harvard University Press, 1952), 2:120-22.
8 Robert A. Rutland, ed., The Papers of George Mason, 1725–1792 (Chapel Hill: University of North Carolina Press, 1970), 1:287-89.
9 The Virginia Journal, November 22, 1787.
10 Journal of the Convention for Framing a Constitution of Government for the State of Massachusetts Bay (Boston: Dutton and Wentworth, 1832), 225-29.
11 Robert A. Rutland, George Mason: Reluctant Statesman (Baton Rouge: Louisiana State University Press, 1961), 67.
12 William C. Rives, History of the Life and Times of James Madison (Boston: Little, Brown and Co., 1859), 1:137.
13 Edmund Randolph, History of Virginia, ed., Arthur H. Shaffer (Charlottesville: University of Virginia Press, 1970), 255.
14 http://www.un.org/en/documents/udhr.
9 Comments
Excellent article and analysis. Though much has been written, and debated, about the influence of Locke’s Second Treatise on the Declaration of Independence (which Jefferson denied, and so did Garry Wills in his Inventing America), whatever path Jefferson took to Locke’s influence had to go through, as you clearly demonstrate, George Mason and the Virginia Declaration of Rights.
It’s too bad Jefferson hadn’t used Mason’s “born equally free and independent” instead of “created equal,” a phrase that can be interpreted in different ways. Mason was more precise. Years later, Stephen Douglas, when debating Abraham Lincoln, protested that Negroes were not the “equal” of whites, leading Lincoln to retreat by admitting they were “not my equal in many respects — certainly not in color, perhaps not in moral or intellectual endowment.” Douglas’s specious argument has been repeated often by opponents of basic civil rights. Had Jefferson stayed with Mason’s phraseology, Lincoln could have cited the Declaration of Independence with greater authority and less apology. “Born equally free and independent” establishes clearly the nature of equality among men: it lies in their rights, not in their attributes, abilities, or achievements.
Mason’s words were interpreted many ways, too. Even though Mason’s language was adopted in Virginia’s Bill of Rights and the BoR of many other nascent states, they had no impact on slavery within Virginia or elsewhere. But Lincoln’s point wasn’t to assert that black and white folks were equal; that would have branded him an abolitionist and ensured his defeat in the election, rather, Lincoln meant that the Declaration asserted that all have equal rights. The rest of the quote from the Ottowa, Il debate (21 Aug 1858):
“I agree with Judge Douglas he is not my equal in many respects—certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without the leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man”
Lincoln clarified his position in the subsequent debate at Alton Il.(15 Oct 1858), speaking in direct reliance upon the Declaration when he said that the writers of the Declaration:
“intended to include all men, but they did not mean to declare all men equal in all respects. They did not mean to say all men were equal in color, size, intellect, moral development or social capacity. They defined with tolerable distinctness in what they did consider all men created equal — equal in certain inalienable rights, among which are life, liberty, and the pursuit of happiness… They meant to set up a standard maxim for free society which should be familiar to all: constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people, of all colors, every where.”
The ultimately sad irony is that if Mason, or those drafting the Declaration, had used stronger language making it clear that slavery was contradictory to the rights of all people, it would not have been adopted and the resulting debate would have fragmented the delegations.
Mason’s wording was not “stronger,” simply more precise. When Lincoln explained himself by saying “”equal in certain inalienable rights,” he could have just pointed to Mason and said, “What that guy said.”
Why would the Continental Congress not have approved of Mason’s wording when the Virginia Convention, under no pressure from abolitionists, did? Virginia, of course, was had more slaves than any other colony/state.
Ah, good sir, you have misread my post. I did not say Mason’s language was “stronger”, only that it would have been subject to interpretation just as any phrase would have been. Lincoln did exactly as you suggest – he pointed to the Declaration and used it to support his point; that “rights” are inherent to the individual regardless of race, intelligence, or morals.
My comment regarding stronger wording was a lament, I would think agreeable to your sentiment, that neither the framers or Mason used stronger language to emphasize the point that Lincoln later made. I added the sad realization that had they done so the document would not have been actionable, if not palatable, to the delegates gathered in 1776. At the least they would have needed to consult with their constituency since none of them (as of June-July 1776) had been provided with instructions authorizing them to agree to congressional measures regarding slavery (other than endorsing embargo of slave importation). Inserting stronger language would have created need for delegates to return to their home states to obtain such authority. That recess alone would have fractured the congress, and the inevitability that some would have denied that authority would have negated the unanimous adoption of the Declaration of Independence.
Perhaps that is why the committee to draft the Declaration did not feel it appropriate to submit Mason’s language and instead included the phrase we have. Perhaps they thought Mason’s language attributed individual rights based on birth status, and instead inserted a phrase that attributed rights to the Creator, implying that which God bestowed cannot by contradicted by man? Perhaps the committee thought that softening Mason’s words would keep the Declaration of Independence focused on America’s relationship to Britain, so reserving the discussion regarding the relationship among Americans for the framing of our united constitution (in regard to “fractious”, we know how that went)?
There’s so much more to this discussion, and the alternative history possibilities of inserting emancipation language into the Declaration of Independence is tantalizing. But, rather than focusing on the lament, we should recognize it as an example of missed opportunity. And that’s why history is important – to learn. Let’s not neglect the progressive attitudes sweeping the nation. Divisive symbols are being removed, all lives matter, and we face an opportunity to adjust attitudes and prejudices. Lets not miss it. and today especially, let’s be thankful that we still live in the land of opportunity.
I see your main point and certainly agree, Jim, but you do refer in your reply to the committee “softening Mason’s words,” which suggests you view his version was stronger. But let’s move beyond the generic “strong” in any case. You are certainly correct that any condemnation of slavery would have altered the course of history, but judging from the response to Jefferson’s aborted attempt to blame the slave trade on Britain, such a condemnation was off the political table. The only “alternative possibilities” would be that the United Colonies would not in fact unite at that juncture to become the United States — and where that might have lead is anybody’s guess.
From a historian’s point of view, I find it interesting how the term “equal” seemed to present no threat at all to slavery, in many minds. Consider South Carolinians, hardline pro-slavery. When the grand jury of the Cheraws District of South Carolina declared itself in favor of independence on May 20, 1776, it praised the new Constitution because it was “founded on the strictest principles of justice and humanity, where the rights and happiness of the whole, the poor and the rich, are equally secured,” yet in Revolutionary South Carolina, slaves were not seen as part of that “whole,” even though they constituted approximately half the population. The grand jury of Georgetown, South Carolina, also praised the new Constitution as “the most equitable and desirable that human imagination could invent”: “The present Constitution of Government, formed by the late Congress of this Colony, promises to its inhabitants every happy effect which can arise from society. Equal and just in its principles, wise and virtuous in its ends; we now see every hope of future liberty, safety, and happiness confirmed to ourselves and our posterity.” It seems that these folks did not even bother to quibble over “equal” because they could never even imagine it applied to blacks.
Ray,
There are a couple of things going on here.
First, we have to remove from our thoughts that being subjected to “slavery” meant subservience in the sense of one acting as a slave at the whim of a master. The term “slavery” as used by the colonists meant being subjected to the laws of Britain, and which, of course, being unrepresented in a tax assessing situation only fueled the rebellion.
Second, for the colonists “equality” under the British never equated with the equality of races per se, but with being afforded equal access to the laws as other Englishmen living in England. In none of these considerations were racial distinctions being made. So, looking at your examples it then makes sense from a legal point of view and not from any sense of equality of races.
It was only with the passage of time and appreciation for the need to do away with the institution of slavery that these terms then took on other connotations. We just have to remember that there was no consistent meaning of slavery or equality and that these terms meant different things at different times.
Gary Shattuck raises an interesting point about slavery and the laws of England. The well-known Somerset v. Stewart case decided by Lord Chief Justice Mansfield in 1772 established the precedent that a slave brought into England could not be seized and detained as a slave: “The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law.” (The report of the case —Somerset against Stewart [1772] EngR 57; 1772 Lofft 1; 98 E.R. 499 (14 May 1772)—is available on the Commonwealth Legal Information Institute’s English Reports site at http://www.commonlii.org/uk/cases/EngR/1772.)
That is, in the absence of any law of England expressly allowing a slave brought into England to be detained, habeas corpus must apply. Mansfield’s decision was a direct predecessor of An Act for the Abolition of the Slave Trade (1807), leading to An Act for the Abolition of Slavery throughout the British Colonies… (1833). Barristers for both sides had canvassed many arguments concerning slavery. Given Mansfield’s judicial stature, the significance of his ruling and the speed of westward packet ships, colonial lawyers were most likely aware of the case.
Mansfield was quite explicit about the difficulties of the question “whether any dominion, authority or coercion can be exercised in this country, on a slave according to the American laws”. In essence, laws in America about slavery applied only in America: they did not apply in England.
If freedom was thus the birthright of all Americans under the laws of England, as was so often used as an argument for rebellion, why did the laws of England after 1772 not apply to American slaves?
I suspect that Mansfield’s legal decision was viewed as sui generis, applicable only on English soil and in circumstances closely tracking Somerset’s situation. Whereas in the colonies their positive expressions condoning slavery had already gone through the legal framework involving their respective assemblies and then an analysis by the Privy Council for repugnancy, followed by royal assent.
So, I don’t see how Mansfield’s decision could overturn colonial practices (and, indeed, it did not) with regard to slavery. To have done so would have required a considerable amount of time for Parliament to consider and then incorporate his decision into English law and then a colony by colony reassessment as to whether their practices were contrary, or repugnant, to it.
Bottom line, 1772 was just too close in time to 1775 and any such effort was doomed in the coming rush of events.