George Mason Drafts the Virginia Declaration of Rights

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And have certain inherent rights . . . namely, the enjoyment of life and liberty . . . and pursuing and obtaining happiness.”

Sound familiar?

It’s not the Declaration of Independence. But Thomas Jefferson certainly drew on these words from Virginia’s Declaration of Rights when he declared that “all men are created equal,” that they have “certain unalienable rights,” and that “among these are life, liberty and the pursuit of happiness.” The 1776 Virginia Declaration also served as a model, in 1789, for the Bill of Rights of the United States Constitution and for the Declaration of the Rights of Man and the Citizen, which was to the French Revolution what Jefferson’s was to the American.

The Declaration of Rights came out of the fifth Virginia Convention, which convened in Williamsburg in May 1776. This was not quite a year after George III declared the colonies to be in a state of rebellion. Nearby Norfolk lay in ruins, and though it was unclear whether British or Continental soldiers were to blame, there was no question that Virginia was at war. The delegates had their hands full coping with everything from a Norfolk petition asking how to choose its delegates since the courthouse there had burned, to one from a soldier asking for aid since his “right arm was unfortunately taken off by a cannon ball.” The fighting became fully and formally a revolution on May 15th. On that day, the Convention passed without opposition a resolution instructing its delegates in Philadelphia to introduce a resolution in the Continental Congress proposing independence. On June 7th, Virginia’s Richard Henry Lee carried out those instructions. “These United Colonies,” the resolution read, “are, and of right ought to be, free and independent states.”

The May 15th vote in Williamsburg also served as Virginia’s own declaration of independence. Immediately, the British flag was taken down from the capitol’s cupola, replaced by the flag of George Washington’s army.

Having severed ties with Great Britain, the Convention’s next order of business was to create a new government for Virginia. It was an indication of just how important the delegates considered a citizen’s inherent rights that, before getting down to work on a constitution, they first set out to write a declaration of rights. The purpose, wrote Edmund Randolph, then a delegate and later the author of a history of Virginia, was so that “in all the revolutions of time, of human opinion, and of government, a perpetual standard should be created, around which the people might rally and by a notorious record be forever admonished to be watchful, firm and virtuous.”

The Convention appointed a committee of thirty-six members. This was at best an inefficient approach, especially since, as Randolph put it, many of the members had an “ardor for political notice rather than a ripeness in political wisdom.” Then arrived George Mason, a delegate from Fairfax County who was, as his biographer Robert A. Rutland put it, a “reluctant statesman.” Mason considered public service “an unjust and oppressive invasion of my personal liberty,” and he must have greeted his election to the Convention (by a narrow margin) with mixed feelings. He delayed leaving his home in Virginia’s Northern Neck (not far from Mount Vernon) because of what he called a “smart fit of the gout.” The remedies of the time—which ranged from ginseng to bloodletting—surely did not improve his mood, nor did the bumpy five-day carriage ride.

Mason was nonetheless held in high esteem by his contemporaries, and as soon as he reached Williamsburg, he was added to the committee. He surveyed the situation with characteristic disdain. “The committee appointed to prepare a plan is, according to custom, over-charged with useless members,” Mason wrote to Richard Henry Lee, who as a Virginia delegate to the Continental Congress put forth the resolution for independence. “We shall, in all probability have a thousand ridiculous and impracticable proposals.”

The only hope, Mason concluded, was to put “this business” in the hands of “a few men of integrity and abilities, whose country’s interest lies next their hearts” He clearly had himself in mind. Mason established himself in a room at the Raleigh Tavern and got to work on a draft.

Now there was reason for optimism. Edmund Pendleton, the Convention’s president, wrote Jefferson, who along with Lee was representing Virginia in Philadelphia: “the political cooks are busy in preparing the dish, and as Colo. Mason seems to have the ascendancy in the great work, I have sanguine hopes it will be framed so as to answer its end, prosperity to the community and security to individuals.” Randolph later confirmed that Mason’s work “swallowed up all the rest.”

Mason’s draft opened with the words that Jefferson would later rephrase: “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 pursuing and obtaining happiness and safety.” The draft then declared principles of government, among them that its power derived from the people, that a majority had the right to change a government, that hereditary privileges had no place in this government, that there should be a separation of powers and frequent elections, that a person accused of a crime had the right to a trial by jury and the right not to incriminate himself, and that there should be religious toleration.

The committee made various changes to Mason’s draft, including prohibiting cruel and unusual punishment, guaranteeing freedom of the press, subordinating military to civilian power, and broadening the definition of religious toleration to guarantee that “all men are equally entitled to the free exercise of religion according to the dictates of conscience.”

Even these changes, however, were to some extent Mason’s work.

On May 27th, the committee sent its report to the full Convention, and on June 1st it was printed in the Virginia Gazette. At this point the delegates were preoccupied by the movement of British forces and they thereby required adjustments to Virginia’s defensive positions. Nonetheless, Robert Carter Nicholas, the delegate from James City County, quickly homed in on the problem that bedeviled the founders again and again: How could they reconcile the declaration that all men were “equally free” with the practice of slavery? How could you guarantee every man’s right to property, when that property included other men? It was Pendleton, this time, who found the way around the seemingly absolute language. Pendleton suggested adding a phrase clarifying that the freedom applied only to men “when they enter into a state of society.” Since the delegates all understood blacks could not enter into Virginia society, slaveholders could endorse the Declaration. On June 12th, the Virginia Convention adopted the document. (As it turned out, the final version of the Declaration of Rights was largely ignored; it was the committee’s draft that, after appearing in the Gazette, was picked up by other newspapers and went on to influence the Declaration of Independence, the Bill of Rights, and the Declaration of the Rights of Man and the Citizen.)

Excerpt from We Hold These Truths, co-published by the Colonial Williamsburg Foundation and Rowman and Littlefield Publishers.

Aron, Paul. "John Adams." We Hold These Truths. Maryland: Rowman and Littlefield Publishers, in association with The Colonial Williamsburg Foundation, 2008. 141-144.

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