On May 15, 1776, immediately after passing a resolution favoring independence from Great Britain, the Virginia House of Burgesses turned to two additional items of business, writing a declaration of rights and a constitution for the soon-to-be independent commonwealth. The chief burden of writing the Declaration of Rights fell to George Mason, then forty years old, and the owner of Gunston Hall in Fairfax County. He had been the author of the ‘‘Fairfax Resolves’’ of 1774, in which he had attacked Great Britain for subverting the traditional rights of Englishmen. In the proposal he drafted for the Burgesses, Mason drew on such varied sources as the colonial charters, English law, and libertarian writers such as Locke, Milton, and Sidney. But none of these provided evidence for Mason’s sweeping assertion that ‘‘all power is vested in, and derived from, the people.’’ In its sum, Mason’s draft relied heavily on a natural rights philosophy that upset many of the more conservative members of the assembly.
From the beginning, the Declaration of Rights was seen as separate from the state constitution, and there has been debate over whether the delegates saw it as a foundation necessary for the constitution, or in some ways superior to the constitution. But in any event, it is the first declaration of individual rights enacted by the newly independent states, and although incomplete, it would become a model for James Madison when he drafted the federal Bill of Rights thirteen years later.
The Declaration, adopted on June 12, had sixteen articles. The first stated that all men are ‘‘by nature equally free and independent, and have certain rights,’’ and they enter into a social compact to protect these rights, including life, liberty, and property— a statement that Thomas Jefferson borrowed from later in the month in drafting the Declaration of Independence.
Articles II and III buttressed the first statement, noting that all power is vested in the people and that government is established by the people for their mutual protection and the protection of their rights.
The next several articles actually dealt more with the nature of government than with individual rights and may have been adopted as guides for the committee drafting the constitution. No one group of men are entitled to special privileges, but offices are open to all citizens; the legislative and executive powers of the government should be kept separate; election to government should be by free elections; there should be no taxation except by assent through free elections; and no officer of government should have the power to suspend representative government.
Articles VIII through X dealt with rights of the accused and provided that an accused shall know the charges against him; shall have the right to call witnesses on his behalf; and not be deprived of life or liberty except by due process of law. There is a right to a fair and speedy trial, and defendants could not be compelled to give evidence against themselves. Excessive bail should not be required, nor cruel and unusual punishments inflicted; and searches may not take place without specific warrants, general warrants being prohibited.
Article XI provided for jury trial in civil suits, whereas XII provided for freedom of the press. Article XIII held that a state militia, although important, should always be under the authority of the civil power. There was no reference in XIII to a right to own or carry arms.
Articles XIV and XV are hortatory in nature, urging that there never be more than one state government created within the borders of the commonwealth, and that the only way free government could survive was by ‘‘firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.’’
The last article provided for the free exercise of religion, but did not disestablish the church and spoke of the ‘‘mutual duty of all to practice Christian forbearance, love, and charity towards each other.’’
Strangely, there is no mention of freedom of speech, but in nearly all other aspects Mason’s work provided a template for both Jefferson in the Declaration of Independence and for Madison in the Bill of Rights, both of whom borrowed not only his ideas but his language as well.
MELVIN I. UROFSKY
References and Further Reading