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.