Sunday, June 12, 2005

Virginia Declaration of Rights Anniversary

Today is the anniversary of the adoption of the Virginia Declaration of Rights, an important precursor to the Bill of Rights in the U.S. Constitution. As explained on the National Archives web site:

Virginia's Declaration of Rights was drawn upon by Thomas Jefferson for the opening paragraphs of the Declaration of Independence. It was widely copied by the other colonies and became the basis of the Bill of Rights. Written by George Mason, it was adopted by the Virginia Constitutional Convention on June 12, 1776.
In his 1992 history of the American Bill of Rights, The Great Rights of Mankind, Bernard Schwartz notes on page one that, in contrast to the "rudimentary" English Bill of Rights of 1689, "the Virginia Declaration of Rights of 1776 was the first modern bill of rights, since it was the first to use a written constitution to insulate individual rights from the changing winds of legislative fancy."

Schwartz writes at length of Founding Father George Mason's pivotal role in the drafting and adoption of the Virginia Declaration of Rights. (His chronicle of the process leading to the Declaration's adoption can be found on pages 67-72 of his book.)

Schwartz, who died in 1997 after teaching law for a half-century at New York University and the University of Tulsa, writes about Mason:
The Journal of the Virginia Convention consists only of unrevealing formal entries, making it necessary to use other sources for facts on adoption of the 1776 Declaration of Rights. Of these, the most important is the summary contained in Edmund Randolph's Essay [on the Revolutionary History of Virginia], written some thirty-five years after the event. Randolph, who had been the youngest delegate to the convention, tells us that, although "many projects of a bill of rights" were presented to the drafting committee, "that proposed by George Mason swallowed up all the rest." [James] Madison also confirms that "This important and meritorious instrument was drawn up by George Mason." Moreover, there is a copy of the first draft of the Virginia Declaration of Rights almost all in Mason's handwriting.

If we compare the first draft with the declaration as adopted, we find only four major additions (Articles 9, 10, 13, and 14). At the end of a copy off the first draft, wrtten in 1778, Mason states that "it received few alterations or additions in the Virginia Convention," saying that only "Two more articles were added, viz., the 10th and 14th in the adopted bills -- not of fundamental nature." Mason understates the significance of the changes made. Article 9 concerns excessive bail and unusual punishments, while Article 10 contains the direct antecedent of the Fourth Amendment. Article 13 calls for a militia controlled by civilians; Article 14 deals with a local problem of Virginia's western land holdings. And a change in Article 16, suggested by Madison, contains the term "free exercise of religion" -- thus anticipating Madison's use of the term in the First Amendment. Yet, even with this said, it remains true that the declaration was mainly Mason's work. The extent of Mason's contribution is made even clearer when we compare it with the rudimentary provisions protecting personal rights in the draft constitution Jefferson prepared just before the Virginia Convention.

That a planter without formal legal training could draw up a document like the Virginia Declaration of Rights must remain a constant source of wonder. According to the 1855 account by Hugh Grigsby, "when Mason sat down in his room in the Raleigh Tavern to write that paper, it is probable that no copy of the reply to Sir Robert Filmer or of the Essay on Government . . . was within his reach. The diction, the design, the thoughts, are all his own." He goes on to say that "Mason was a planter, untutored in the schools, whose life . . . had been spent in a thinly settled colony." Nonetheless, Mason knew Locke, Montesquieu, and Sydney -- the trio that gave the Revolution its theoretical underpinnings.

In a letter written to Richard Henry Lee on the very day he took his seat in the convention, Mason declared, "We are no going upon the most important of all Subjects -- Government." In settling the constitutional frame of government, he and his colleagues were at one in the opinion that a declaration of rights had to be an integral part of the new constitution. This explains why so revolutionary an item as the declaration could be drawn up by one man and adopted with few changes. By 1776, a consensus had clearly developed in the former colonies on the fundamental rights the law should protect. In giving specific content to those rights, Mason gave expression to the shared thoughts of the day on individual rights; in doing so he was more the codifier than the transforming innovator.
Here is the complete text of the Virginia Declaration of Rights. Consult it often:
A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free convention which rights do pertain to them and their posterity, as the basis and foundation of government .

Section 1. 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; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Section 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.

Section 3. That government is, or ought to be, instituted for the common benefit, protection, 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 maladministration. And that, when any government shall be found inadequate or contrary to these purposes, a majority of the community has 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.

Section 4. That no man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, nor being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.

Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

Section 6. That elections of members to serve as representatives of the people, in assembly ought to be free; and that all men, having sufficient evidence of 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, assembled for the public good.

Section 7. 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.

Section 8. That in all capital or criminal prosecutions a man has 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 twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.

Section 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Section 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

Section 11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.

Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense 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.

Section 14. That the people have a right to uniform government; and, therefore, that no government separate from or independent of the government of Virginia ought to be erected or established within the limits thereof.

Section 15. 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.

Section 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.

Those who are interested can read the current Constitution of Virginia here. Note that Mason's Declaration of Rights is still the basis for Article I of the constitution, which was revised and amended in 1971 from the 1902 version.

1 comment:

Just Ken said...

I've always wondered what would have happened had Mason lived longer. Outside of Jefferson and Paine, he was clearly the most consistent libertarian of the time.

Would he have supported the Whiskey Rebellion (our first civil war) and the "Principles of '98? Would he have added his voice to the call for abolition? Would he have fought the federalist inclinations of Hamilton and John Adams?

American history would have changed for the better, I think.

Just a thought.
Just Ken