Goerge Mason; R. Polin

Raymond Polin GEORGEMASON: Fatherof the Bill of Rights Copyright U.SP.S. Commemorative postage stamp honoring George Mason. THOMAS JEFFERSON has been justly honored, in the main, as the author of the Declaration of Independence, one of three accomplishments that he chose to be inscribed on his tomb stone: "Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the Statute of Virginia for religious freedom, and father of the Univer sity of Virginia." It is indicative of the priority of values held by Jefferson that he asked to be remembered in finality by a legacy of principles of freedom and an institution of higher educa tion. No mention was made by him that he had attained the very highDr. Polin is Professor of Government and Politics in the Graduate School of Arts and Sciences· of St. John's University (New York). His latest work, Modern Government and Constitutionalism (Chicago: Nel son-Hail, 1979),includes attention to concepts of lim ited government and stability, his principal area of academic interest. His current research deals with the roots of the Declaration of Independence.

734 est political offices of his state and nation: Governor of Virginia, Secre tary of State of the United States, and successively Vice-President and President of the United States. But how much credit is justly due Jefferson for composing the Decla ration? How original and how com plete was his authorship of this doc ument? Did he create or invent it, or did he copy, recall, or borrow in good part? Jefferson's role as the author of the Declaration seems securely es tablished and likely to endure. How ever, there is little or nothing in the Declaration in concept or language that had not been previously writ ten by Spanish and Italian Jesuits of the seventeenth century, John Morin Scott (1730?-1784) of New York, James Otis (1725-1783) of Massachusetts, Filippo Mazzei (1730-1816) of Italy and Virginia, Richard Bland (1710-1776) of VirGEORGE MASON: FATHER OF THE BILL OF RIGHTS 735 ginia, Thomas Paine (1737-1809) of England and Pennsylvania, and George Mason (1725-1792) of Vir ginia. What is more, Jefferson was most probably familiar with all of these prior writings with the possi ble exception of the polemical pieces by Scott that were broadcast at the time of the Stamp Tax controversy in 1765. Jefferson himself has been candid enough to write in later years in a letter of May 8, 1825, to Henry Lee: "I did not consider it as any part of my charge to invent new ideas altogether and to offer no sen timent which had ever been ex pressed before."l A NecessaryConnection It does not diminish the honor that of right belongs to Jefferson, there fore, if we call attention to· the con tribution of others to the Declara tion of Independence and accord them their just recognition in turn. Also, we gain increased understanding of the relationship between the Decla ration and the Constitution of the United States and subsequent amendments if we see their "neces sary"connection. For we may re gard the original Constitution, the Bill of Rights, and especially Amendments XIII, XIV, XV, and XIX, as "necessary" to implementa tion of the. ideas stated in the Dec laration.

And this is where proper recogni tion of the role of George Mason also becomes "necessary" to an improved perspecti ve of historical develop ment and justice to the memory of Mason. For not only did Mason make an important immediate contribu tion to the Declaration of Indepen dence, but he also anticipated in general the structure and principles of government contained in the Con stitution of the United States and those amendments which most added to freedom and equality before the law in America. We may also ob serve that Thomas Jefferson was not at the Constitutional Convention in Philadelphia in 1787 or in Virginia during the struggle for ratification, but George Mason was a leading ac tor during both events. Robert Allen Rutland says of Ma son's participation during the Con stitutional Convention: "He was a faithful attendant at the sessions, speaking to the point on practically every topic of importance."2 In any event, Jefferson and Mason indis putably viewed each other as hon orable, kindred spokesmen and were the warmest of allies, pleased with and supportive ofeach other. It was a .friendship based· on the strongest of foundations-mutual respect-and ended only with the death of Mason but a week after a farewell visit by Jefferson to Mason at Gunston Hall, his beloved plantation home.3 The Declaration of Independence probably would have .been quite similar in use of concepts, language, 736 THE FREEMAN December and line of argument even had Ma son's Virginia Declaration of Rights not been available to Jefferson. Per haps the same may be said of the Bill of Rights and Amendments XIII, XIV, and XV. However, we are able to trace a direct causal connection between the Virginia Bill of Rights and the First Ten Amendments. In deed, a careful reading of the Vir ginia Bill indicates that its influ ence on the contents of the Declara tion of Independence is much less than its contribution to the Bill of Rights of the Constitution of the United States. Also, the Bill ofRights may be of more practical and endur ing value to the American system of government than the Declaration of Independence.

The Declaration embodies a credo of lofty principles and sentiments but it is the Bill of Rights that is a matter of everyday law and habit by which Americans live. The Bill of Rights fulfills the aspirations of the Declaration of Independence as a continuing effective limitation on the power of government and as a pro moter of individual and group free dom and opportunity. Is not this combination the essential nature of the American system of government and society? Therefore, it is really of minor concern whether it be Mason or Jef ferson who is to be held responsible for the phrase "the pursuit of hap piness" that appears in the Declaration. For example, William Safire writes in a column entitled "What Government is For," that Jefferson departed from Locke's phrase "life, liberty and property" because, as Safire states it: "A disciple of his, Thomas Jefferson thought that he would give that phrase an inspira tionallift, and our Declaration of In dependence hails 'life, liberty and the pursuit of happiness.' That eu phemism started the trouble."4 The usually well-informed Satire has strayed into areas dealing with his tory and political theory where he lacks expertise and has thereby il lustrated the need for many of us to become more familiar with the background as well as the wording of the Declaration.

The Origin of the Idea It is not difficult to set straight who was primarily responsible for inclusion of the words "the pursuit of happiness" in the Declaration by pointing out that they were, in ef fect, contained in the earlier Vir ginia Bill of Rights that was adopted on June 12, 1776, and that even be fore that date Philadelphia newspa pers had reprinted its draft text (e.g., the Pennsylvania Evening Post on June 6, Pennsylvania Ledger on June 8, and Pennsylvania Gazette on June 12). Jefferson was not asked to draft the Declaration until June 11 and probably did not begin his task of writing until June 12.5 1981 GEORGE MASON: FATHER OF THE BILL OF RIGHTS 737 The first article of Mason's Vir ginia Bill states: "That all men are by nature equally free and indepen dent, and have certain rights, of which, when they enter into a state of society, they cannot, by any com pact, deprive or divest their poster ity; namely, the enjoyment of life and liberty, with the means of ac quiring and possessing property, and pursuing and obtaining happiness and safety."6 By comparing the texts of the Virginia Bill of Rights and the First Ten Amendments-and, inci dentally, the contributions of its framers in 1776 to the Declaration of Rights for the State of Pennsyl vania and of John Adams to the draft of the Massachusetts Declaration of Rights for its Constitution of 1780 we see clearly recognizable reliance on George Mason's thoughts and words. 7 Most important of all, the following provisions that are present in the· First Ten Amendments are contained in the Virginia Bill of Rights as well, at times in the very same words: Amendment I: Freedom of religion and of the press.

Amendment II: A well-regulated mi litia. (Mason goes well beyond the Con stitution, e.g., by specifying "that, in all cases, the military should be under strict subordination to, and governed by, the civil power.") Amendment IV: No general war rants, but only those specifying the par ticular person, place, and thing and is sued only upon probable cause. Amendment V: No man to be de prived of liberty or property without due process of law, or compelled to be a wit ness against himself. Amendment VI: In all criminal pros ecutions the right of the accused to a speedy trial in the State and district and to be informed of the nature and cause of the accusation; to be confronted with the witnesses; and to have compulsory pro cesses in his favor. Amendment VIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punish ments inflicted." (E.g., Mason: "9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.") The influence of Mason and his tenets goes far beyond the Consti tution's Bill ofRights, however. Thus, we may note the following basic pro visions that are present in the orig inal articles of the Constitution and are also specified in Mason's Vir ginia Bill of Rights: separation of the branches of government, a re publican form of government, and periodic election to legislative and executive offices.

It is a matter of conjecture why Jefferson and his colleagues-who did make changes in his draft-did not include property or restore it. In fact, the word property does not ap pear in· Jefferson's Rough Draft or the final version, but we do not know what was contained in the earlier drafts that have been lost. Perhaps this omission was an oversight, and 738 THE FREEMAN December perhaps not. Perhaps consciously or subsconsciously property was omit ted because material things were lower in their scale of values than the independence, self-government, and personal freedom for which they proclaimed "we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." Opposing on Principle Even the pragmatic Alexander Hamilton in A Full Vindication of the Measures of the Congress (1774) had written with disdain of the eco nomic aspects of the tea tax: "How ridiculous, then, is it to affirm that we are quarreling for the trifling sum of three pence a pound on tea, when it is evidently the principle against which we contend."8 It is still the general rule that America, although rich in material accom plishments and· possessions, consid ers things of the human spirit, in cluding its pursuit of happiness, as transcendent. However,· cognizance should be taken here that· personal freedom, safety, and happiness are usually inseparable from enjoyment and protection of legitimate prop erty rights.

The role of Thomas Jefferson and his Declaration of Independence as sources of continuing inspiration is a familiar one. Less familiar but no less important for America is the role that George Mason and his Vir ginia Bill of Rights played in fitting into place the capstone of American constitutionalism. It is not James Madison who is the original author of and prime mover for the First Ten Amendments to the Constitution of the United States: it is George Ma son. George Mason refused to sign the Constitution at Philadelphia in September of 1787 because it failed to incorporate a Bill of Rights for the purpose of imposing limitations on the new federal government and be cause it failed to end slavery. He resolutely sat on his hands. Mason went home to brave the wrath of George Washington and many of his· countrymen by arguing in company with Patrick Henry that ratification of the Constitution should not take place until a Bill of Rights had been added to limit the power of the federal government and to pro tect the rights and freedom of states and individuals. To his great credit, although Madison adhered to his po sition .that ratification should come first, he came to see the merits of Mason's demand for a federal Bill of Rights and the need to forestall a new convention. Madison therefore was to be the leader in Congress of those working for adoption of a na tional Bill of Rights in fulfillment of their ratification campaign prom ise.9 Until his end, Mason continued to hate slavery and to rue the failure of .the Constitution to root it out from the new nation. But Mason ap1981 GEORGE MASON: FATHER OF THE BILL OF RIGHTS 739 proved of Madison's version of his Virginia Bill and lived to see the First Ten Amendm~nts go into ef fect on December 15, 1791.10 It would therefore be appropriate if, just as Thomas Jefferson is remembered every Fourth of July· in connection with America's Declaration of Inde pendence from Great Britain, George Mason were to be more widely asso ciated in the popular mind with the Bill of Rights that carried Indepen dence a step further to "secure the Blessings of Liberty to ourselves and our Posterity" purposed in the pre amble of a somewhat incomplete Constitution. @ -FOOTNOTESIPaul Leicester Ford,ed., The WorksofThomas Jefferson, 12 vols. (New York: G. .P. Putnam's Sons, 1904-1905), Vol. XII, p. 409.

For discussion of a significant but too-ne glected essay of 1765 by John Morin Scott that presented ideas and language similar to what later appeared in the Declaration, see Ray mond Polin, "Foreshadows of the Declaration of Independence in the New York Press," The Freeman, Vol. 13, No.7 (July, 1963), pp. 14-20. For concise identification and explanation of these ideas, see Polin, "The Political Theory Within the Declaration ofIndependence and Its Meaning for Us 'Ibday," The Social Studies, Vol. 57, No.4 (April, 1966), pp. 147-154, including bibliograp~y. For the writings of George Mason, see Robert Allen Rutland, ed., The Papers of George Ma son, 3 vols. (Chapel Hill: University of North Carolina Press, 1973). 2Robert Allen Rutland, George Mason, Re luctant Statesman (Charlottesville: University Press of Virginia, Dominion Books, 1963), p. 85. 3Ibid., pp. 99 and 106-107; Helen Hill Miller, George Mason, Gentleman Revolutionary (Chapel Hill: University of North Carolina Press, 1975),passim, especially p. 333; and Kate Ma son Rowland, The Life and Correspondence of GeorgeMason, 1725-1792 (1892), 2 vols. (New York: Russell & Russell, 1964), e.g., Vol. I, pp.

272-274, and Vol. II, pp. 363-365. 4New York Times, 2 March 198!. 5James Munves, Thomas Jefferson and the Declaration of Independence: The Writing and Editing of the Document that Marked the Birth of the United States of America (New York: Charles Scribner's Sons, 1978), pp. 10-14. 6In addition to The Freeman, Vol. 31, No. 7 (July, 1981), pp. 410-412, the text of the Vir ginia Bill of Rights is contained in Miller, Gen tleman Revolutionary, pp. 337-340 (first draft, printed committee draft, and final version). 7Miller, Gentleman Revolutionary, pp. 154 155; and Robert Allen Rutland, The Birth of the Bill ofRights, 1776-1791, published for the Institute of Early American History and Cul ture (Chapel Hill: University of North Carolina Press, 1955), pp. 44-47 and 66-74. 8Henry Cabot Lodge, ed., The Works ofAlex ander Hamilton, 12 vols. (New York: G. .P. Put nam's Sons, 1904), Vol. I, pp. 3-52, at p. 7.

9Miller, Gentleman Revolutionary, pp. 274 275 and 296; Rutland, Reluctant Statesman, pp. 89-107, Rutland, Birth ofthe Bill ofRights, pp.192-193; Nathan Schachner, The Founding Fathers (New York: G. .P. Putnam's Sons, 1954), pp. 51-52; and Irving Brant, The Bill ofRights: Its Origin and Meaning (New York: New Amer ican Library, Mentor Book, 1967), pp. 42-59. IORutland,Reluctant Statesman, pp. 106-110; Rutland, Birth of the Bill of Rights, pp. 190 210, especially p. 210; Miller, Gentleman Rev olutionary, pp. 321-329; and Rowland, Life and Correspondence of Mason, Vol. II, pp. 318-365.