The Virginia Declaration of Rights: Its Place in History

ONFUSION attends and confounds the place of the Virginia Declaration of Rights in history. Irving Brant cleared up some of it in Madison the Revolutionist, but left many questions unexplored and in some instances added to the confusion -- and so have we. David J. Mays shed some new light on it in his fine work on Pendleton, but many questions remain unanswered about the most influential constitutional document ever penned by man.

It was published in the Virginia Gazette June 1, 1776, and later in several Pennsylvania newspapers. It was republished in the Maryland Gazette of June 13th, as it was all over America. The Pennyslvania newspapers carried a Williamsburg date line of June 1, 1776. For some unexplainable reason the Maryland Gazette date line was "Williamsburg May 24, 1776."

Surprisingly, the Virginia Gazette's news item was not used by other newspapers. The first paragraph as published elsewhere and not in the Virginia Gazette, was:

The following declaration was reported to the Convention by the committee appointed to prepare the same, and referred to the consideration of a committee of the whole convention; and in the meantime, is ordered to be printed for the perusal of the members.

The next paragraph in the Pennyslvania and Maryland newspapers was the first in the Virginia Gazette as follows:

A Declaration of Rights made by the Representatives of the good people of Virginia, assembled in full and free convention; which right do pertain to us and our posterity, as the basis and foundation of our government.

The first paragraph of the June 1st printed draft, before revision by the Virginia Convention, was:

That all men are born equally free and independent, and have certain inherent and natural 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 and possessing property, and pursuing and obtaining happiness and safety.

The June 12th official Declaration, as mangled by the Convention Committee, was apparently not published beyond Virginia. The various state conventions and assemblies, and the Declaration of Independence committee copied from the June 1st draft as published in the papers. John Adams added some clarification in his Diary on June 23, 1779 when he revealed that the Virginia Declaration of Rights "made by Mr. Mason" had been published in Philadelphia before he, Franklin and Jefferson prepared the Declaration of Independence, and that Pennsylvania copied it "almost verbatim." Adams did the very same thing for Massachusetts within the year in which that entry was made in his Diary. Both the Declaration of Rights of Pennyslvania and that written by Adams for Massachusetts, and those of many other states use Mason's original words: "That all men are born equally free and independent" etc. None copied the convention's mangled version.

The Virginia Convention struck out the word "born" and substituted "by nature" in the original draft. For the Declaration of Independence, Jefferson struck out the word "born" and substituted the word "created" and changed the word "equally" into "equal" and left off the words "free and independent." He copied other phrases as well from the original draft.

Statements may be found restated in many books to the effect that the Virginia Declaration of Rights was not a part of her Constitution until 1830. A companion statement frequently found is that Virginia had no Declaration of Rights at the time when the battle for a federal bill of rights was being waged by Mason, Henry, and others. The latter statement was made by James Jackson of Georgia during the debates on the Federal Bill of Rights in the First Congress on June 8, 1789 and was made earlier by numerous other proponents of the Constitution including James Wilson of Pennsylvania.

Elliot's Debates carry only fragments of the proceedings of the Pennsylvania Ratifying Convention. It is a well kept secret that those proceedings were carried in full by the newspapers of the time.* In the Pennsylvania Packet of December 15, 1787, the following appears:

Mr. Wilson: Virginia has no Bill of Rights, and will it be said that her constitution was the less free?

Mr. Smilie: I beg leave to observe Mr. President, that although it has not been inserted in the printed volume of state constitutions, yet I have been assured by Mr. Mason, that Virginia has a bill of rights.

Mr. Wilson: I do not rely upon the information of Mr. Mason or any other gentleman on a question of this kind, but I refer to the authenticity of the volume which contains the state constitutions, and in that, Virginia has no bill of rights.

In 1780 the Continental Congress ordered the publication of all American Constitutions. The Virginia Declaration of Rights was apparently left out. Consequently the oldest Declaration of Rights appearing in the official publication was that of Pennsylvania which postdated the Declaration of Independence. It thus became natural for James Wilson and others examining that book, or others based upon it, to assert that Virginia had no Declaration of Rights. To add to the confusion, the constitutions were arranged geographically from north to south rather than chronologically or alphabetically. On May 5, 1781, Madison sent Jefferson a copy of the atrocity and commented upon the derangement by the committee.

Numerous editions of the American Constitutions were soon published in America, in England and in France. Most of those editions carried other American state papers such as the Declaration of Independence and the Articles of Confederation, but apparently, none of them carried the Virginia Declaration of Rights. The 1783 William Jackson, London Edition of American Constitutions (now before the writer) does not carry the Virginia Declaration of Rights. It recites in its preface:

. . . posterity will be curious . . . to trace those progressive steps by which dependent Colonies ascended to the rank of Sovereign States. To assist impartial investigation in this particular, a selection of the most consequential records is submitted to the Public, disposed in such a series as to bear the mutual relation to each other of cause and effect.

Thus the light slowly dawns. This explains why Thomas Jefferson and Benjamin Franklin were neatly substituted in history for the true architect of American liberty and the true "legislator of America." Who wouldn't be great if he were credited with the brain and pen of George Mason?

In the conversation between John Adams and Marbois, (Secretary of the French Commission), recorded in the Adams Diary aboard the Sensible in 1779, M. Marbois said of Franklin ironically:

Adams' response was that "nothing is more groundless" and pointed out that Franklin had made no contribution to constitutional government in America.

It was universally believed in France, England and all Europe that Franklin's "electric wand" accomplished the American Revolution. The displacement of the Virginia Declaration of Rights by the Declaration of Independence and by the Pennsylvania Declaration of Rights and consequently the displacement of George Mason by Thomas Jefferson and Benjamin Franklin may be safely described as History's Greatest Hoax.

The statement so often repeated that Jefferson copied his "pursuit of happiness" phrase from John Locke becomes hilarious after comparing the first three paragraphs of the Virginia Declaration of Rights with the preamble to the Declaration of Independence. George Mason may have found that phrase expressed scores of ways. Here are samples:

Happiness is universally allowed to be the object which all mankind, some way or other are in pursuit of.

(Pennsylvania Packet, Oct. 28, 1771)

From the earliest ages of the world down to the present time, there has been one uninterrupted hue and cry after happiness -- It has constantly been in the mouth of everybody but in the possession of no body; -- and I dare confidently affirm that he who talks most about it, enjoys the least share of it.

(Pennsylvania Packet, March 30, 1772)

George Mason was an avid reader of newspapers and periodicals. The Pennsylvania papers as well as the Maryland papers were available to him. His gout, gallstones and restless mind made of him perhaps the best read man in Virginia.

It is true, as often stated, that the Virginia Declaration of Rights of 1776 was not a part of her Constitution, prior to 1830. It is likewise true that Virginia's Constitution of 1776 was not a part of her Declaration of Rights. However, Virginia's Declaration of Rights was of the same validity as her Constitution, if not more so because the convention that adopted it stated it to be "the basis and foundation of government" in Virginia. It became the basis and foundation of republican government in American and in the world.

George Mason was an enigma. He pursued his objectives relentlessly -- but in silence, whenever he could. He had a passion for anonymity. He let others take credit for his greatest achievements. He let Jefferson use the first three paragraphs of his Virginia Declaration of Rights to make a preamble to the Declaration of Independence, without ever commenting on it. He let Franklin hold himself out to the world as the "legislator of America," without protesting. He prepared the proposed Amendments copied by servile hands in the Virginia, New York, North Carolina, and Rhode Island Ratifying Conventions and which eventually became the Federal Bill of Rights, yet he let Patrick Henry present them to the Virginia Convention, without revealing the author. He wrote the preamble to Jefferson's Bill for Religious Freedom in Virginia and never told it, except, it appears likely, in a letter to a son that was broken open, read and thrown into the ocean by Phillip Mazzei. The tell-tale spelling, punctuation, capitalization and other Mason pen prints are still on the oldest drafts. He wrote every state paper that Washington every carried to Williamsburg or Richmond prior to the Revolution and kept the secret. The documents themselves yet remain among Washington's Papers in the handwriting of Mason. That handwriting tells the secret. In Vol 3. p. 277 of his Writings of Washington, John C. Fitzpatrick reluctantly concedes that prior to the American Revolution, Mason "appears to have made Washington the instrument for carrying his ideas into practice." George Mason was the instrument of no man -- no man on earth. When God finished making Mason, he destroyed the mold.

On December 29, 1780, the Continental Congress appointed a committee composed of Mr. Thomas Bee, Mr. John Witherspoon and Mr. Oliver Wolcott

to collect, and cause to be published, two hundred correct copies of the Declaration of Independence, the Articles of Confederation and Perpetual Union, the Alliances between these United States and his Most Christian Majesty, with the Constitutions or Forms of Government of the several States, to be bound together in boards.

Said committee published the 200 volumes bound in boards in 1781. The Declaration of Independence first appears in the book followed by the Articles of Confederation. The constitutions of 11 states and the charters of Connecticut and Rhode Island appear in the following order: New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

The Declarations of Rights of the following states were published in this book: Massachusetts, Pennsylvania, Delaware, Maryland, and North Carolina. The Virginia Declaration of Rights of June 1776 was not published or referred to in the book.

Previous to the publication by the Continental Congress Benjamin Franklin had published the Declaration of Independence, American state constitutions and declarations of rights in two French editions in France in 1778. (Both are in the Rare Book Room of the Library of Congress.) Neither of these editions carry the Virginia Bill of Rights of June 12, 1776. Both editions carry the Virginia Declaration of Rights as reported by the committee on June 1, 1776 and as published in newspapers all over America, in 18 paragraphs. Both editions dated the Virginia Declaration of Rights as of June 1, 1776. This is the same version of the Virginia Declaration of Rights that Franklin, Adams, and Jefferson used in making the preamble to the Declaration of Independence in June 1776 and that Franklin copied two months later in the Declaration of Rights for Pennsylvania and that Adams copied four years later into the Declaration of Rights of Massachusetts.

In addition to the official volume printed by order of the Continental Congress in 1781, the Library of Congress has editions published in the following years: 1782, 1783, 1785, 1791, 1796 and 1797. Some of these editions were published in England and some in America. None of those editions carry either the June 1, 1776 committee report of the Virginia Declaration of Rights or the official version adopted on June 12, 1776.

The Library of Congress does not contain the editions contained in my library, to-wit: The London Stockdale edition of 1782 and the London Stockdale edition of 1783. The latter edition contains a preface and dedication by Rev. William Jackson. That is the edition referred to in my previous memorandum as the "Jackson edition." My original memorandum quotes from the preface to the edition of 1783.

The Editor's "Advertisement" in the Stockdale edition of 1782 contains the following interesting first line:

After the Colonies of North America had completely renounced their allegiance to the Mother-Country, by their solemn Declaration of Independence, in the month of July, 1776, each of the States into which they were then divided, adopted different forms of independent governments, besides entering into a general treaty of confederation and union.

The copy of this Treaty, (referring to the Treaty with France) which is the most interesting part of the Collection, has accordingly been placed at the beginning of this new edition, together with the Declaration of Independence, which may be considered as the ground-work of the whole present American political system.

Thus the Stockdale editions, owned by me, spell out the grand hoax that the editions owned by the Library of Congress do not spell out.

Early 19th century editions of American state constitutions in the Library of Congress do not contain either the June 1st or the June 12th Virginia Declaration of Rights. For example, an edition in the Library of Congress, published in 1819 contains all of the declarations of rights contained in earlier editions, but not the Virginia Declaration of Rights.

The first bound volume of American Constitutions to carry the Virginia Declaration of Rights of June 12, 1776 was published by Jonathan Foster of Winchester, Virginia in 1811! Apparently Jonathan Foster was a Virginian with more courage than brains. Otherwise he would not have sponsored the publication in English of a bound volume that contained the Virginia Declaration of Rights, when the world knew from "unimpeachable evidence" that the principles of the American governments were all taken from the Declaration of Independence rather than the Virginia Declaration of Rights.

It was apparently Jonathan Foster's bound volume that started the controversy as to the authorship of the Virginia Declaration of Rights and the Declaration of Independence that so embarrassed Jefferson in his old age. Jefferson threaded his course between Sylla and Charibdis by protesting that Mason wrote the Declaration of Rights and that nothing in the Declaration of Independence was original with him, and that it was copied from "neither book nor pamphlet" -- which was the truth. It was copied from a newspaper, just like Adams said that Franklin copied it. Jefferson was more honest than his admirers, but he just couldn't let them down by telling that he borrowed from Mason.