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R. Carter Pittman

This essay was written at the suggestion of the Hon. Robert N. Wilkin, who served as Federal judge of the Northern District of OH. Mr. Pittman began circulating it for publication on Sept. 26, 1955. Whether it was ever published has not yet been learned. Mr. Pittman regarded this essay as "perhaps the most important one I have ever written."
This presentation was prepared from a typewritten draft obtained through the courtesy of Gunston Hall.

George Mason's Master Draft of the Bill of Rights follows this essay.

Our Bill of Rights
How It Came to Be

By R. Carter Pittman

(A story never before told)

T HE FEDERAL AND THE STATE BILLS OF RIGHTS are memorials and milestones in the never ending struggle of men to recapture and retain liberty and dignity. They are parchment shields against the lash of tyrants and the effects of depravity in seats of power. They constitute a cluster of little foxholes of liberty burrowed in the hard face of history. They are the result of distrust of power and distrust of men in power. They are a recognition of the truth eternal, expressed by Lord Acton, that "power corrupts, and absolute power corrupts absolutely." Like Christianity they are based upon the supposition that depravity is the natural state of man. But for that premise there would be no need for bills of rights or constitutions, for laws or, indeed, for a heaven or a hell. The Ten Commandments were not written for the guidance of angels.

One would naturally think that there must be a vast body of literature on the history of the various provisions of the Federal Bill of Rights, but such is not the case. The repositories of the records of American civilization contain virtually nothing about the springs and sources of the maxims of human liberty. Those maxims have had no historian. The great libertarians have had no Boswells. Those who ride to power -- and in power ride roughshod over the rights of men -- seem always to stand in marble on our public squares. Those who establish the beachheads and add to the domain of human freedom usually rest in unmarked graves and dark oblivion.

The methods of despotic governments have been essentially the same in all ages. Tyranny learns nothing new. It gives new names to the same things and overwhelms the bulwarks of liberty with semantics. Charles I, George III, Stalin, Hitler, Mussolini, Napoleon, Caesar, Peron and others of their kind used substantially the same methods to rob the people of their liberties. The masses are prone to exchange an age of freedom for an hour of welfare. Anglo-Saxon institutions were designed to slow down the erosion of rights to give time for a sober second thought.

The American Bills of Rights are not "bills" enacted by legislative assemblies. They are declarations of rights by the people themselves. They are not held by leave of any man or body of men. They are rights retained, that are inherent in people. They are of such nature as to be a parcel of dignity itself. One may not divest his posterity of such rights. They are "unalienable". Governments were designed to protect those rights. American governments were so constituted as to be powerless to destroy them. The declared rights, including the right to "life and liberty, with the means of acquiring and possessing property and pursuing and obtaining happiness and safety" are the gifts of God -- not governments.

The First Amendment to the Federal Constitution provides:

Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

Those words, as well as those of the other amendments making up our Bill of Rights, bind the federal government in chains in order that men may he free. They render the federal government powerless to make laws respecting God-given rights. If a right may be legislated in or out, it is no inherent right. It is a legislative permit.

Tyrannical governments always lay hold of the religion of the people either to control or suppress it. They abridge freedom of speech and of the press and deny to the people the right peaceably to assemble and to petition for a redress of grievances. The First Amendment forever inhibits the use of such means of reducing people to slavery.

Despotic governments disarm people so they can't fight back. The Second Amendment forbids that.

Despotic governments of old quartered their soldiers in the cottages and in the bedrooms of the defenseless people without their consent. The Third Amendment prevents that.

Despotic governments habitually sack and ransack the castles and cottages of the people, their papers and effects, without cause shown, in order to find evidence or an excuse to make martyrs of those courageous enough to stand erect and unafraid. The Fourth Amendment forbids that.

Once an accused is in custody, tyrannical governments seek to bypass grand juries and file "informations," containing bogus and unevaluated charges, and if they can't make them stick the first time, they try again; they torture, beat, and starve to compel the helpless accused to give evidence against himself in criminal cases, and deprive him of his life, liberty and his property without due process of law. The Fifth Amendment forbids that.

Despotic governments put the accused to secret trial before special tribunals servile to executive power, without the interposition of impartial juries, like the star chambers and the high commissions of the 17th century and the alphabetical boards of the 20th century, in order that those in power may dictate, and men may not evade the results. Despotic rulers hate juries and despise independent judges of character because they can't control them. The Sixth Amendment, for criminal cases and the Seventh Amendment for civil law cases, preserve the right of trial by jury before independent judges provided for elsewhere in the Constitution.(1)

Despotic governments tend to become sadistic and impose excessive bail, excessive fines, and cruel and unusual punishments. The Eighth Amendment forbids that.

Despotic governments insist that the enumeration of rights retained by the people serve to deny or disparage other unenumerated rights retained by the people. The Ninth Amendment invalidates that specious claim.

Despotic governments insist that all power and sovereignty rests in the state -- not in the people, that the divine right to rule rests in rulers -- not the people. The Tenth Amendment proclaims the reverse to be true. It reasserts the old Virginia Declaration of Rights' principle "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," and "that government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community."

There is no manuscript publicly known and cherished as the original American Bill of Rights. We have been taught to worship the Declaration of Independence as a fetish. Libraries are full of books about it, yet it is an instrument that never became living law and to which no man may appeal for protection from the heavy hand of power. It served a noble but temporary purpose during the American Revolution largely because it appealed to emotions and did much to bring France to the aid of American colonists. On the other hand, the Bill of Rights is living law and stands as an everlasting shield against governmental use of power in many instances and the abuse of powers in others.


OUR BILL OF RIGHTS: HOW IT CAME TO BE is a story that has never been told. It should have been told and taught for 164 years in America.

On September 12, 1787, the Constitutional Convention in Philadelphia was nearing the end. Two weeks before, the delegates of the New England States had made an agreement with the delegates of Georgia and of South Carolina under the terms of which interstate commerce or "navigation laws" (as they were then called) might be enacted by a simple majority of the Congress rather than a two-thirds majority, as previously agreed upon at the urgent insistence of George Mason, a delegate from Virginia. In return for voting with the delegates of the New England States on that issue, a majority of the delegates of those states agreed to vote with the Georgia and South Carolina delegations to permit the importation of slaves for 20 years.

At that time that trade was made there was no provision in the Constitution specifically limiting the legislative powers vested in the Congress. Having lost the battle in a frontal assault, George Mason made a flank attack to try to salvage something of the rights of men. By reasoning and cajoling, "out of doors," Mason finally induced Gouverneur Morris, of the Committee of Style, to insert the words "herein granted" into the granting clause of Article I of the Constitution, so as to specifically restrict the Congress to the legislative powers catalogued in the Constitution itself, leaving nothing to implication or construction. Once that limitation became fixed in the bedrock of the Constitution on the morning of September 12th, Mason decided that it was time to strike. Again he approached from the side and introduced the subject in a most disarming way. During a discussion on September 12th, opened by Elbridge Gerry, a brilliant delegate from Massachusetts, while urging "the necessity of juries to guard against corrupt judges," Mr, Gorham of Massachusetts, alluded to equity cases in which juries are not used, and then, according to Madison's Notes, the following occurred:

COL. MASON perceived the difficulty mentioned by Mr. Gorham The jury cases cannot be specified. A general principle laid down, on this and some other points, could be sufficient. He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for the purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill might be prepared in a few hours.

MR. GERRY concurred in the idea, and moved for a committee to prepare a bill of rights.

COL. MASON seconded the motion.

The motion for the appointment of a committee to prepare a bill of rights was rejected by the unanimous votes of the states. Both Madison and Washington voted against the proposal of their colleague from Virginia.(2) Mason and Gerry stood alone and refused to sign a constitution that sanctioned human slavery and omitted the rights of men.

As the victorious delegates were preparing to leave Philadelphia, George Mason's aging mind was aflame. He wrote his Objections to the proposed constitu­tion on the back of the last printed draft used in the Convention. His first six words were heard in every hovel and on every frontier of America:

There is no Declaration of Rights!

Madison gave an insight into the unchained fury of Mason at the parting in Philadelphia, in a letter to Jefferson October 24, 1787:

Col. Mason left Philadelphia in an exceeding ill humor indeed. A number of little circumstances arising in part from the impatience which prevailed towards the close of the business, conspired to whet his acrimony. He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.

The aim of the proponents of the Constitution was to keep George Mason and Elbridge Gerry out of the ratifying conventions of their respective states. Gerry was defeated in Massachusetts. Mason was defeated in his home county of Fairfax. But three other Virginia counties asked that he hold their ban­ners in his last struggle for the rights of men over government. He chose that of Stafford, his ancestral home and the home of the Lee's who loved him.

As is well known, the Constitution had already been ratified by the necessary nine states before any state proposed the adoption of a declaration of rights. Some of them had proposed amendments to be inserted within the body of the Constitution but none had proposed a declaration of rights. Then Virginia, New York, North Carolina and Rhode Island, successively, proposed bills of rights as well as amendments to be inserted within the body of the constitution.

Historians and biographers have noticed that the proposed bills of rights of those four states were substantially identical. The generally accepted theory is that New York, North Carolina and Rhode Island copied the Virginia draft. North Carolina did copy the Virginia draft almost word for word and paragraph for paragraph, but the assumption that New York and Rhode Island copied the Virginia draft is without basis in fact. Nevertheless, paragraph after paragraph of the New York and Rhode Island proposals are almost exactly the same as the Virginia proposal.

While the Virginia Convention was in progress Col. Oswald, a newspaperman and a true libertarian, arrived in Richmond from Philadelphia on or about June 8th. He brought with him secret communications from Gen'l John Lamb of New York addressed to George Mason, Patrick Henry, William Grayson, and other Virginia republicans.

Gen'l Lamb was chairman of the "Federal Republican Committee of New York." On the 9th Patrick Henry replied to Gen'l John Lamb in part as follows:(3)

Col. George Mason has agreed to act as chairman of our Republican Society. His character I need not describe. He is everyway fit; and we have concluded to send you by Col. Oswald a copy of the Bill of Rights, and of the particular amendments we intend to propose in our Convention.

On the same day William Grayson wrote the General that the Virginia "Committee of opposition . . . had directed their Chairman to answer by Col. Oswald". He stated further that "some of our proposed amendments are finished in the committee; and others will be forwarded as soon as agreed upon."(4)

On the same day George Mason, as Chairman, informed Gen'l Lamb that he and his associates had received with pleasure the proposal of the New York Committee for full correspondence on the subject of amendments, and that he had been re­quested "to transmit to your committee such as we have agreed on as necessary for previous adoption." He added:

The nature of the opposition here is such that it has not yet taken any particular form; being composed only of members of the convention who meet to prepare such amendments as they deem necessary to be offered to the convention. If it should hereafter become necessary to assume one, it is hoped that system and order will everywhere appear suitable to the importance and dignity of the cause.(5)

That letter, the proposed bill of rights and the proposed amendments to the Constitution met with immediate and sympathetic response in the New York Ratifying Convention. In a letter to George Mason from Poughkeepsie, June 21, 1788, Judge Robert Yates said, in part:

Your letter of the 9th inst. directed to John Lamb, Esquire at New York Chairman of the Federal Republican Committee in that City enclosing your proposed Amendments to the new Constitution, has been by him transmitted to such of the Members of Our Convention, who are in sentiment with him. In consequence of this Communication a Committee has been appointed by the members in Opposition to the New System (of which they have appointed me their Chairman) with a special view to continue our correspondence on this necessary and important Subject.

We are happy to find that your Sentiments with respect to the Amendments correspond so nearly with ours, and that they stand on the Broad Basis of securing the Rights and equally promoting the Happiness of every citizen in the Union.(6)

No trace of the original letter of Mason to Lamb, in the handwriting of Mason, has been found.* The draft of a Bill of Rights and Amendments that accompanied Mason's letter was identified by the writer for the first time in January, 1955. A copy of Mason's letter in an unknown handwriting has long been known to be among the Gen'l Lamb Papers in the New York Historical Society, but no proposed bill of rights accompanied it. However, an instrument of such description in an unknown handwriting was found among the undated and "unclassified" Papers of Gen'l John Lamb. It is a 12 page document with the title, "Amendments to the New Constitution of Government." Its preamble is,

That there be a Declaration or Bill of Rights, asserting and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:

Following, a bill of rights is set forth in 20 paragraphs. In addition there are 13 unnumbered paragraphs of proposed amendments to be inserted within the body of the Constitution.(7)

The document found among the Lamb Papers compares physically with the copy of Mason's letter to Gen'l Lamb of June 9th, in the following particulars: (a) The handwriting is the same; (b) the texture of the paper is the same; (c) the size of the paper is the same; (d) the color of the paper is the same; (e) the rules in the paper are the same; (f) the color of the ink is the same; and (g) the folds in the paper are the same, except that the document reveals that it has been folded more times than the letter.

Unquestionably the letter and the document were written by the same hand at the same time and place, and the two folded together for transmittal. Neither is in the handwriting of Mason.

We learn from other letters among the Lamb Papers and other sources, that duplicates of communications were usually made by the republican friends of freedom and sent by a different conveyance in the hope that one might get through. The mails were robbed, delayed and pilfered by the federalists in an effort to thwart republican efforts to cooperate.(8)

Among the Mason Papers in the Library of Congress, in the handwriting of George Mason, with corrections, additions and emendations solely in his handwriting, is the original document from which the "Declaration or Bill of Rights" in 20 paragraphs, among the Lamb Papers was exactly copied, word for word, paragraph for paragraph, comma for comma, and period for period. The document in the New York Historical Society enables us to fix the date of the original in the Library of Congress at least sixteen days before Virginia's Convention appointed a bill of rights committee and eighteen days before it made its report.

It will be recalled that on September 12, 1787, on the Convention floor of Philadelphia, George Mason said that "with the aid of the state declarations, a bill might be prepared in a few hours." Either while in Philadelphia, or certainly before the Virginia Ratifying Convention met in Richmond, George Mason had "with the aid of the state declarations" prepared a bill of rights in 20 paragraphs. A scriviner exactly copied it and Mason's letter in Richmond for transmittal by another routing to New York. The same scriviner copied the letters of Henry and Grayson also, and for the same reason.

The 20 paragraphs of Mason's original draft of the Federal Bill of Rights were all copied or refined from the Declaration of Rights that Mason wrote for Virginia and that was adopted at Williamsburg on June 12, 1776, except: Two and a part of a third that were borrowed from the Pennsylvania Declaration of Rights of 1776, a portion of two that he borrowed from the Maryland Declaration of Rights of 1776, and two lines that he borrowed from the Constitution of Virginia of 1776, of which he was also author.

The Virginia Ratifying Convention was coming to a close as the Committee to prepare a bill of rights came together on June 25, 1788. Among those on the Committee, besides Mason, were Patrick Henry, James Madison, John Marshall, George Wythe, James Monroe, and many others who have left their impress on American history. On Friday, June 27th they reported a proposed bill of rights to be annexed to the Constitution, and proposed amendments to be embedded in the Constitution itself.

The proposed bill of rights was almost a verbatim copy of that prepared by George Mason before June 9th, a copy of which was sent to New York on that date. So once again, an illustrious Virginia Committee became a multitudinous rubber stamp for old George Mason on June 27, 1788.

On the 7th day of July, 1788, John Lansing presented to the New York Convention a proposed Declaration of Rights copied from the Mason draft now among the Lamb Papers. The Virginia proposal of June 27th was not used by New York, as is believed. A small chip of evidence is all that is necessary to demonstrate that fact. Paragraph 18 of Mason's draft was as follows:

That no Soldier in Time of Peace ought to be quartered in any House without the Consent of the Owner; and in Time of War, only by the civil Magistrate in such manner as the Laws direct.
(Emphasis supplied)

Paragraph 18 in the official Virginia draft left out the words "only by the civil Magistrate" and was as follows: (9)

That no soldier in time of peace, ought to be quartered in any House without the consent of the owner; and in time of war, in such manner only as the law directs.

The corresponding provision in the bill of rights proposed by New York was as follows:(10)

That, in time of peace, no soldier ought to be quartered in any House without the consent of the owner, and in time of war only by the civil magistrates in such manner as the law may direct.
(Emphasis supplied)

Thus it unmistakably appears that the New York Ratifying Convention did exactly what Virginia did and what Judge Yates had indicated would be done, and copied Mason's draft into its proposals to the Congress.

The new government went into operation with North Carolina and Rhode Island out of the Union, because there was no bill of rights. The North Carolina Convention proposed previous amendments and went home in August, 1788. The Declaration of Rights and Amendments proposed by it are almost identical with those proposed by Virginia. Its paragraph 18, was:(11)

That no soldier in time of peace, ought to be quartered in any House without the consent of the owner, and in time of war in such manner only as the law directs.

Thus it appears that North Carolina in August copied the Virginia Convention version of Mason's draft.

On the 29th day of May, 1790, long after the Congress had proposed amendments to the states for adoption, but before official adoption had taken place, Rhode Island ratified the Constitution. In doing so she proposed a bill of rights copied almost verbatim from the Mason draft as were those of Virginia, New York and North Carolina. It's first 17 paragraphs are copies of the first 17 paragraphs of the Mason draft. When her Committee came to the end of paragraph 17, it put in a semi-colon instead of a period and added the old paragraph 18 to paragraph 17, to make it end in this familiar manner:(12)

. . . that, in time of peace, no soldier ought to be quartered in any House without the consent of the owner, and in time of war only by the civil magistrates, in such manner as the law directs.
(Emphasis supplied)

So by the phrase "only by the civil magistrates" we know that Rhode Island copied either the Mason or the New York Draft. If she copied from New York, it is strange that the numbering and the sequence of the paragraphs exactly corres­pond to those appearing in Mason's draft. In that respect it was radically dif­ferent from that of New York where the paragraphs were unnumbered and scrambled. A few of the Rhode Island proposals that do not appear in the New York proposals do appear in Mason's draft. Therefore, the Rhode Island Convention had a copy of Mason's draft before it, just as did New York. Whether the copy went from Richmond or from Poughkeepsie is about the only question that remains unsolved.

On December 15, 1791, the Federal Bill of Rights became a part of the Constitution. The 3rd Amendment is as follows:

No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

The clause "only by the civil magistrates" was sought to be reinserted by Gerry on the floor of the House of Representatives on August 17, 1789, and was finally lost in the Congress, but not until it had served to convince us that Gerry had a copy of Mason's draft and that George Mason, rather than the Virginia Convention, was the author of the Federal Bill of Rights. Now for the first time in American history the fact that George Mason wrote the only Bill of Rights proposed to the Congress for adoption is fully documented.

There is so much that is false in current literature about the sources of the various provisions of the Federal Bill of Rights that it is appropriate to adduce some evidence on which to base a verdict that speaks the truth.

Articles and books dealing with that part of the Fifth Amendment that confers the privilege against self-incrimination have lately become fashionable. George Mason's pen was the first in all history to elevate that privilege to the dignity of constitutional status. We use it as an example and trace it briefly from Mason's pen in the spring of 1776 by way of Willlamsburg, Philadelphia, Annapolis, Edenton, Boston, etc., until it became a part of the Federal Bill of Rights in 1791. As stated in Mason's Virginia Declaration of Rights of the June 1st printing, as well as in the version officially adopted on June 12th, no one in any criminal case may

. . . be compelled to give evidence against himself.(13)

In August 1776, Pennsylvania copied the same words into her Declaration. So did Maryland (adding a restrictive clause). Delaware did the same in September. Next came North Carolina, all in 1776. In 1777 Vermont (a "state" at home but not abroad at that time) copied the same seven magic words. In 1780 John Adams revised it for Massachusetts to make it say that no one in a criminal case may

. . . be compelled to accuse or furnish evidence against himself.

In 1784 New Hampshire copied the Massachusetts version. Paragraph 8 of Mason's proposed draft of a federal bill of rights states the privilege against self-incrimination exactly as he had stated it for Virginia in 1776.

Paragraph 8 of Virginia's proposed bill of rights of June 21, 1788, an unnumbered paragraph of New York's of July 26th, paragraph 8 of North Carolina's of August 1, 1788, and paragraph 8 of that of Rhode Island of May 29, 1790, contain exactly the same words, providing that no one in a criminal case may

. . . be compelled to give evidence against himself.

The privilege emerged as a part of the Fifth Amendment to the Federal Constitution, as follows:

. . . nor shall any person . . . be compelled, in any criminal case, to be a witness against himself.

It is now a part of the fundamental laws of 46 American States. It continues to rebound in the fundamental parchments of many free states of the world.

The Virginia Declaration of June 1776 was the first constitutional document in all history to guarantee freedom of the press. Paragraph 12 provided:

That the freedom of the press is one of the great Bulwarks of liberty, and can never be restrained except by despotic government.

Pennsylvania restated the principle in August 1776, adding "speech" (which was in Mason's by implication) as follows:

That the people have a right to freedom of speech and of writing and publishing their sentiments, therefore, the freedom of the press ought not to he restrained.

Then came Maryland:

That the liberty of the press ought to be inviolably preserved.

Next Delaware:

That the freedom of the press ought to be inviolably preserved.

North Carolina:

That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.

Vermont (Aspiring to statehood):

That the people have a right to freedom of speech, and of writing and publishing their sentiments; therefore, the freedom of the press ought not to be restrained.


The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restricted in this commonwealth.

In 1784 New Hampshire modified the Massachusetts draft as follows:

The liberty of the press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.

In Mason's proposed federal "Declaration or Bill of Rights" freedom of the press was preserved in these words:(14)

16. That the people have a right to freedom of speech, and of writing and publishing their sentiments, that the Freedom of the Press is one of the great Bulwarks of Liberty, and ought not to be violated.

The Virginia Ratifying Convention of 1788 added "th" and made a superlative of "great" to make it read:

l6th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

The New York Convention put it this way:

That the freedom of the press, ought not to be violated or restrained.

North Carolina's Convention copied Virginia:

16. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

On the 26th of August 1789 France put it this way in Art. II of her celebrated Declaration of Rights:

The unrestrained communications of thoughts or opinions being one of the most precious rights of man, every citizen may speak, write and publish freely, provided he be responsible for the abuse of this liberty, in the cases determined by law.

The next year Rhode Island's Convention put it this way;

XVI. That the people have a right to freedom of speech, and of writing and publishing their sentiments. That freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

It went into the First Amendment to the Federal Constitution as follows:

Art. I. Congress shall make no law . . . abridging the freedom of speech, or of the press . . .

The foregoing illustrate the evolution of two of the guarantees of liberty that first attained the dignity of constitutional status by the pen of George Mason and which are now doing their feeble best to shield mankind from despotism throughout the non-communist world.

The Federal Bill of Rights contains nothing new.(15) Madison has been hailed as the proponent of it in the Congress. His biographers have held him up as the master draftsman who gave it to us. Not one single clause of it can be traced to Madison's brain or pen. The Bill of Rights proposed to the Congress by Madison on June 8, 1789 is an almost verbatim copy of that proposed by Virginia in 20 paragraphs which was almost a verbatim copy of Mason's original draft.

Not one clause of it is traceable to Thomas Jefferson's mind or pen. Unfortunately, there are many books and articles, based on shallow scholarship, that attribute some of the provisions of the early bills of rights to the preamble to the Declaration of Independence. Seven American states, and ambitious little Vermont, adopted declarations of rights before the adoption of the Federal Bill of Rights. All were based on Mason's original draft as published in newspapers on June 1st, 1776. The original version of Virginia's Declaration of Rights of June 1776 was published in Philadelphia about the time the Committee composed of Jefferson, Adams and Franklin and others was named to write the Declaration of Independence.

On June 23, 1779 John Adams recorded in his Diary that while he, Franklin and Jefferson were working on the Declaration of Independence in Philadelphia in June of 1776, the Virginia Declaration of Rights "made by Mr. Mason" was the talk of the town, and that the newspapers were full of it. He recorded that Pennsylvania copied it "almost verbatim" for her Declaration of Rights that same summer. Neither Adams, Franklin, Jefferson or any other member of the drafting committee ever said or wrote one word inconsistent with the thesis that they copied the preamble of the Declaration of Independence from Mason. Charles Francis Adams, grandson of John Adams, recorded that his grandfather copied Mason for Massachusetts's Declaration of Rights a few weeks after making that tell-tale entry in his Diary.(16)

Many provisions of the Bill of Rights grew out of American colonial experience. Others may be found in the history of the long and sanguinary struggles of the English people to recapture and retain liberty and to stabilize it with law. Magna Carta, the writings of pamphleteers of the Puritan Revolution, the ill-fated constitutional documents of that era, and the English Bill of Rights of 1689 are fruitful sources. Fragments of the Bill of Rights may be found along the road to the Cross and great chunks may be found along the road to Tower Hill.

Mason's mind was universal. He knew human nature. He was an avid reader. All history lay before him in panorama. The causes of the rise and fall of governments and the ebb and flow of human liberty and dignity under governments, was as ABC's to him. He learned from history that once man enters into a state of society his individual liberty and dignity may be retained only by governments of laws whose essential powers are subdivided and placed in different hands sustained and protected from usurpation by permanent and impartial institutions of justice. Institutions were designed to stabilize. Governments of men are governments of the flesh. They are heirs to all of the ills and frailties of the demagogues who rise to the top in democracies. George Mason knew that in governments of the flesh human liberty and dignity ebb and flow with tides and perish in swells.

George Mason was a peculiar man. He let Patrick Henry present his "Declaration or Bill of Rights" to the Virginia Ratifying Convention, without revealing its author. He let Madison present it to the Congress, without claiming it as his own. He let Jefferson use the original version of his Virginia Declaration of Rights of 1776 to make a preamble to the Declaration of Independence without revealing the source. He wrote the preamble to Jefferson's Bill for Religious Freedom in Virginia and never mentioned it except in a letter which was never delivered to a son. He wrote every state paper that Washington ever carried to Williamsburg or Richmond prior to the Revolution, and never told it. All of those documents now lie among the Washington Papers in the Library of Congress in the handwriting of George Mason. It is those papers and a few letters of transmittal that tell the secret.

John C. Fitzpatrick, Editor of the Writings of Washington says in his volume 3, page 277, that prior to the Revolution Mason "appears to have made Washington the instrument for carrying his ideas into practice." Jefferson's and Madison's biographers have avoided an approach so near the kingdom of truth. Jefferson him­self regarded Mason "the wisest man of his generation." Patrick Henry described him as "the greatest statesman I have ever known." Henry knew Washington, Jefferson, Madison, Franklin, Adams and all the others at the laying of the foundation stones of the American government.

Mason was indeed a strange man. He seemed to believe that there was no limit to what a man might do if it didn't matter who got the credit. Abnegation of self is not a creed. It is not a philosophy. It is a way of Life. It was Mason's way.

* A few years after this essay was written, the original copy of Col. Mason's letter to Gen. Lamb was found among the Papers of John Lansing. The letter was given to the New York Historical Society and placed among the Lamb Papers. (-Ed.)



l. NOTE: Article III of the Constitution specifically forbids the exercise of judicial power by servile tools of executive power. Non-precarious tenure and pay for all who should exercise the judicial power of the United States was originally designed to keep men free. It now serves no useful purpose except to make judges "well to do." Justice has always had its free course between man and man. It is in cases between governments and men that the helpless people have cried out for impartial justice. It is in those very cases that servile tribunals out of Washington are imposing party policy and the will of executive power, upon the people. That has always been the first and last step toward despotism. Despotism cannot exist without servile tribunals.

2. In his old age Madison rewrote his Notes to make it appear that the vote on the motion by states was a tie, but the official Journal of the Convention records, contemporary notes record, and all of Madison's reputable biographers concede that the vote against the motion was unanimous.

3. John Lamb Papers, N. Y. Historical Society.

4. Lamb Papers, N. Y. Historical.Society.

5. Lamb Papers, N. Y. Historical Society.

6. ALS New York Public Library -- NOTE: Rowland lamented the loss of this letter to history -- Rowland, Life of George Mason, Vol. II, p. 280.

7. An exact copy of the "Declaration or Bill of Rights" as well as the "Amendments" accompanying Mason's letter of June 9, 1788, is attached hereto.

8. Spaulding, New York In The Critical Period, 1783-1789, p. 260.

9. Elliott's Debates, Vol. 3, p. 659.

10. Elliott's Debates, Vol. 1, p. 328.

11. Elliott's Debates, Vol, 4, p. 244.

12. Elliott's Debates, Vol. 1, p. 335.

13. See Thorpe, Charters and Constitutions, alphabetically arranged, for all quotations from State Declarations except Delaware, which see in Maryland Gazette, Sept. 19, 1776. The bills of rights and amendments proposed by state ratifying conventions may be found in Elliott's Debates. Virginia: Vol. 3, p. 657; North Carolina: Vol. 4, p. 242; All other states, Vol. 1, pp. 319-339.

14. The Pennsylvania influence is obvious.

15. Our Bill of Rights is a compilation of provisions that are easily traceable to their immediate sources. The 1st paragraph partially traced above, was compiled from 15 and 16 of Mason's draft of 1788, and paragraph 11 of New Hampshire's Declaration of 1784.
The 2nd Amendment was paragraph 17 of Mason's of 1788.
The 3rd amendment is traced to its immediate sources above.
The 4th is from paragraph 8 and 9 of Mason's of 1788.
The 5th is from 8 and 9 of Mason's of 1788.
The 6th is from 8 of Mason's of 1788. The 7th is from 11 of Mason's of 1788. The 8th is from 13 of Mason's of 1788. The 9th and 10th came immediately from amendments proposed by the ratifying conventions of Massachusetts, South Carolina and New Hampshire for insertion in the body of the Constitution. Virginia, New York, North Carolina and Rhode Island copied Mason's version of those proposals. The Ninth Amendment took its exact form in the Congress. It is not certainly known who phrased it. The 9th and 10th were restatements of principles contained in the first three paragraphs of Mason's Virginia Declaration of Rights of June 1776 and the first three paragraphs of that of 1788. Paragraph 2 of that of 1776 was:

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.

16. Works of John Adams, Vol. 4, p. 220.
NOTE: Mason's original first line as published in the papers, was: "all men are born equally free and independent." Jefferson perverted it to read, "all men are created equal." (Both Pennsylvania and Massachusetts adopted the exact wording of Mason rather than the specious perversion used by Jefferson in the Declaration.) Thus a great truth that appealed to reason became a great falsehood that appealed to emotions.

George Mason's Master Draft of the Bill of Rights

Amendments to the New Constitution of Government

That there be a Declaration or Bill of Rights, asserting and securing from Encroachment, the Essential and Unalienable Rights of the People, in some such manner as the following. -

1. That all Freemen have certain essential inherent Rights, of which they cannot by any Compact, deprive or divest their Posterity; among which are the Enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtaining Happiness and Safety.

2. That all Power is naturally vested in, and consequently derived from the People; that Magistrates therefore are their Trustees and Agents, and at all Times amenable to them.

3. That Government ought to be instituted for the Common Benefit, Protection and Security of the People; and that whenever any Government shall be found inadequate or contrary to these purposes, a Majority of the Community hath an indubitable unalienable and indefeasible Right to reform, alter or abolish it, and to establish another, in such manner as shall be judged most conducive to the public Weal; and that the Doctrine of non-resistance against arbitrary Power and Oppression is absurd, slavish and destructive of the good and Happiness of Mankind.

4. That no man or Set of Men are entitled to exclusive or separate public Emoluments or privileges from the Community, but in Consideration of public Services; which not being descendable neither ought the Offices of Magistrate, Legislator or Judge, or any other public Office to be hereditary.

5. That the Legislative, Executive and Judicial powers of Government should be separate and distinct; and that the members of the Two first may be restrained from Oppression, by feeling and participating the public Burthens, they should, at fixed periods, be reduced to a private Station, return into the Mass of the people, and the vacancies be supplied by certain and regular Elections, in which all, or any part of the Former members to be eligible or ineligible, as the Rules of the Constitution of Government and the Laws shall direct.

6. That the Right of the People to participate in the Legislature is the best Security of Liberty, and the Foundation of all Free Governments; for this purpose Elections ought to be free and frequent; and all men having sufficient Evidence of permanent common Interest with, and Attachment to the Community, ought to have the Right of Suffrage: And no Aid, Charge, Tax or Fee can be set, rated or levied upon the People without their own Consent, or that of their Representatives so elected; nor can they be bound by any Law to which they have not in like manner assented for the Public Good.

7. That all power of suspending Laws, or the Execution of Laws by any Authority, without Consent of the Representatives of the People in the Legislature, is injurious to their Rights, and ought not to be exercised.

8. That in all capital or criminal Prosecutions, a man hath a right to demand the cause & nature of his Accusation, to be confronted with the Accusers and Witnesses, to call for Evidence and be admitted Counsel in his Favor, and to a fair and speedy Trial by an impartial Jury of his Vicinage, without whose unanimous Consent he cannot be found guilty, (except in the Government of the Land and Naval Forces in Time of actual war, Invasion or rebellion) nor can he be compelled to give Evidence against himself.

9. That no Freeman ought to be taken, imprisoned, or desseized of his Freehold, Liberties, privileges or Franchises, or outlawed or exiled, or in any manner destroyed, or deprived of his Life, Liberty or Property, but by the Law of the Land.

10. That every Freeman restrained of his Liberty is entitled to a remedy, to enquire into the Lawfulness thereof, and to remove the same if unlawful, and that such Remedy ought not to be denied or delayed.

11. That in Controversies respecting Property, and in Suits between Man and man, the ancient Trial by Jury of Facts, where they arise, is one of the greatest Securities to the Rights of a Free people, and ought to remain sacred and inviolable.

12. That every Freeman ought to find a certain Remedy, by recourse to the Laws, for all Injuries or wrongs he may receive in his person, property or Character: He ought to obtain Right and Justice freely, without sale, compleatly and without Denial, promptly and without Delay; and that all Establishments or regulations contravening these Rights are oppressive and unjust.

13. That excessive Bail ought not to be required, nor excessive Fines imposed, nor cruel and unusual Punishments inflicted.

14. That every Freeman has a Right to be secure from all unreasonable Searches and Seizures of his Person, his papers, and his property; all Warrants therefore to search suspected places, or to seize any Freeman, his Papers or property, without Information upon Oath (or Affirmation of a person religiously scrupulous of taking an Oath) of legal and sufficient Cause, are grievous and Oppressive; and all General Warrants to search suspected Places, or to apprehend any suspected Person, without specially naming or describing the Place or Person, are dangerous and ought not to be granted.

15. That the People have a Right peaceably to assemble together to consult for their common Good, or to instruct their Representatives, and that every Freeman has a right to petition or apply to the Legislature for redress of Grievances.

16. That the People have a right to Freedom of speech, and of writing and publishing their Sentiments; that the Freedom of the Press is one of the great Bulwarks of Liberty, and ought not to be violated.

17. That the People have a Right to keep and to bear Arms; 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 are dangerous to Liberty, and therefore ought to be avoided as far as the Circumstances and Protection of the Community will admit; and that in all Cases, the military should be under strict Subordination to, and governed by the Civil Power.

18. That no Soldier in Time of Peace ought to be quartered in any House without the Consent of the Owner; and in Time of War, only by the civil Magistrate in such manner as the Laws direct.

19. That any Person religiously scrupulous of bearing Arms ought to be exempted upon payment of an Equivalent to employ another to bear Arms in his stead.

20. 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 have an equal, natural, and unalienable Right to the free Exercise of Religion according to the Dictates of Conscience, and that no particular religious Sect or Society of Christians ought to be favored or established by Law in preference to others.


That each State in the Union shall retain its Sovereignty, Freedom and Independence, and every Power, Jurisdiction and Right which is not by this Constitution expressly delegated to the Congress of the United States.

That there shall be one Representative for every Thirty Thousand Persons according to the Enumeration or Census mentioned in the Constitution until the whole Number of representatives amounts to Two Hundred.

That Congress shall not exercise the Powers respecting the regulation of Elections, vested in them by the Fourth Section of the First Article of the Constitution, but in Cases when a State neglects or refuses to make the Regulations therein mentioned, or shall make Regulations subversive of the Rights of the People to a free and equal Representation in Congress agreeably to the Constitution, or shall be prevented from making Elections by Invasion or Rebellion; and in any of these Cases, such Powers shall be exercised by the Congress only until the Cause be removed.

That the Congress do not lay direct Taxes, nor Excises upon any Articles of the growth, or manufactured from the growth of any of the American States, but when the Monies arising from the Duties on Imports are insufficient for the public Exigencies; nor then until the Congress shall have first made a Requisition upon the States, to assess, levy and pay their respective Proportions of such requisitions according to the Enumeration or Census fixed in the Constitution, in such Way and Manner as the Legislature of the State shall judge best; and if any State shall neglect or refuse to pay its proportion pursuant to such Requisition, then Congress may assess and levy such States' proportion, together with Interest thereon, at the Rate of Six per Centum per Annum, from the Time of Payment prescribed in such requisition.

That the Members of the Senate and House of Representatives shall be ineligible to, and incapable of holding any Office under the Authority of the United States, during the Time for which they shall respectively be elected.

* That there shall be a constitutional responsible Council, to assist in the Administration of Government, with the Power of chusing out of their own Body, a President, who in the case of the Death, Resignation, or Disability of the President of the United States, shall act, pro tempore, as Vice President instead of a Vice President elected in the Manner prescribed by the Constitution; and that the Power of making Treaties, appointing Ambassadors, other public Ministers or Consuls, Judges of the Supreme Courts, and all other Officers of the United States, whose appointments are not otherwise provided for by the Constitution, and which shall be established by Law, be vested in the President of the United States with the Assistance of the Council so to be appointed. But all Treaties so made or entered into, shall be subject to the Revision of the Senate and House of Representatives for their Ratification. And no Commercial Treaty shall be ratified without the Consent of Two-Thirds of the members present in both Houses; nor shall any Treaty ceding, contracting, restraining or suspending the Territorial Rights or Claims of the United States, or any of them, or their or any of their Rights or Claims to fishing in the American Seas, or navigating the American Rivers be ratified without the Consent of Three-Fourths of the whole number of the members of both Houses.

No Navigation Law, or Law for regulating Commerce, shall be passed without the Consent of Two-Thirds of the Members present in both Houses.

No Standing Army or Regular Troops shall be raised or kept up in Time of Peace without the Consent of Two-Thirds of the members of both Houses.

Neither the President, nor Vice President of the United States, nor any member of the Council, shall command the Army or Navy of the United States in person, without the Consent of Two-Thirds of the members of both Houses.

No Soldier shall be enlisted for a longer Term than four Years, except in Time of War, and then for no longer Term than the Continuance of the War.

No Mutiny Act shall be passed for any longer Term than Two years.

The President of the United States, or any other Officer acting under the Authority of the United States shall, upon Impeachment, be suspended from the Exercise of his Office during his Trial.

The Judges of the Federal Court shall be incapable of holding any other Office, or of receiving the Profits of any other Office or Emolument under the United States or any of them.

* This article not yet finally agreed upon by the Committee appointed to prepare the amendments. _____

[NOTE: The footnote refers to the committee in the Republican Society tasked with preparing amendments to present to the Virginia ratifying convention, as this Master Draft had been written at least 2 weeks before the Virginia convention appointed a committee to prepare amendments.  -Ed.]