THE BILL OF RIGHTS.

237

In the library of the Capitol at Richmond, preserved in a glass case, is the manuscript of the Virginia Bill of Rights which was presented to the State of Virginia, February 15, 1844, by General John Mason, the last surviving son of George Mason of Gunston. General Mason in his letter to the General Assembly on this occasion says of the manuscript:

"It is believed to be the only original draft of that instrument now extant; none being found in the archives of the commonwealth. The evidences of its authenticity are clear and undoubted. It came into my possession from the papers of the author soon after his death, more than half a century since. It is throughout in his own handwriting. And its character as the first draft reported to the Convention is declared, as well by the memoranda with his initials prefixed as by the note at the foot of the manuscript. The memoranda describe the paper as the 'Virginia Declaration of Rights in 1776. Copy of first Draught by G. M.' The note at the foot of the manuscript is in these words: 'This Declaration of Rights was the first in America; it received few alterations or additions in the Virginia Convention (some of them not for the better), and was afterwards closely imitated by the other United States.'"'

On the 2d of October, 1778, George Mason wrote to his cousin, Col. George Mercer, then in London, sending him a copy of the Bill of Rights, declaring himself to be the author in these words:

"To show you that I have not been an idle spectator of this great contest, and to amuse you with the sentiments of an old friend upon an important subject, I enclose you a copy of the first draught of the declaration of rights just as it was drawn and presented by me, to the Virginia Convention, where it received few alterations, some of them I think not for the better. This was the first thing of the kind upon the continent, and has been closely imitated by all the States.""

1 Appendix x.

'The draft of the Declaration of Rights sent to Col. George Mercer in 1778 and the letter in which it was enclosed are now in possession of Dr. Thos. Addis Emmet of New York.

And this paper is to be seen now "just as it was drawn and presented" by Colonel Mason. No copy of the Bill of Rights, or of the two articles in question, are to be found among Patrick Henry's papers, nor does Henry anywhere assert his authorship of these two articles, nor was such a claim made for him during his lifetime. There is only the unsupported statement of Edmund Randolph, committed to writing probably thirty years after the events which he recalls; whereas there is the deliberate assertion of George Mason in the confidence of private correspondence only two years and six months from the time of which he speaks that the Declaration of Rights was entirely his own composition, an assertion repeated by him, in substance, in the brief endorsement on the original drafts of this paper The biographer of Edmund Randolph practically concedes that the latter must have been mistaken in his recollection of the matter.'

now extant.

Corroborative testimony of Mason's authorship of the thirteenth article in the original draft is obtained through the paper drawn up by him for the Fairfax Independent Company in 1775. The first five articles of the Bill of Rights are also to be traced to this paper. In this business of a volunteer company, obscure and local in its nature, we find broad and general principles laid down, and it proved to be, as it were, a study for the great State paper of 1776. One of its postulates was "that no institution can be long preserved, but by frequent recurrence to those maxims on which it was formed." This is the groundwork of the thirteenth article (the fifteenth article, as the Bill of Rights now stands), yet we are asked to believe that George Mason in drafting the Bill of Rights studiously omitted what he had so recently declared of such importance, and that it was supplied by an amendment of Patrick Henry's. The paper, prepared for the conduct of a military organization, would naturally only touch upon civil not upon religious liberty, but in a charter of government the two ideas 1 "Life of Edmund Randolph,” p. 158. By Moncure D. Conway.

THE THIRteenth SECTION.

239

would inevitably be found together. And George Mason wrote in the letter from which we have quoted: "We have laid our new government upon a broad foundation, and have endeavored to provide the most effectual securities for the essential rights of human nature, both in civil and religious liberty." The italics are ours. It is not credible that, holding such views, George Mason in his draft of a Bill of Rights should ignore the principle of religious liberty, and in the light of his consistent advocacy of religious freedom, in every stage of his public life from 1776 to 1788, the moral impossibility of his having omitted such an article from his "ground and plan" of a Declaration of Rights is clearly manifest. Mason's paper, it may be affirmed with almost absolute certainty, was prepared by him before he appeared in Convention. The whole subject, very much of it as we find it there, had been thought out, it is apparent, months before and committed to writing. He certainly would not be idle at such a crisis. Nor would it be characteristic of him to present a plan that was in any way crude or incomplete. The principles of his Declaration of Rights were not original with him, of course. They were as old, some of them, as the Roman jurisprudence, and are to be found, more or less developed, in Montesquieu, Algernon Sydney, Locke, and others.

It may be expedient here to examine briefly the history of the Bill of Rights in its passage through the committee and through the Convention to see how the original draft fared in these two ordeals. Among George Mason's papers has been found a copy of the Declaration, the first part of it in the handwriting of Mason and the remainder in the handwriting of Thomas Ludwell Lee. It is interesting as showing the appearance of the paper in one of its stages, as it was passing through the committee, and it indicates the order in which the articles were taken up for consideration. An article relating to ex post facto laws was added, and two other amendments were alluded to as likely to be adopted. There are also verbal changes in several of the original articles.' 1 1 Appendix x.

(40)

And this paper is to be seen now "just as it was drawn and presented by Colonel Mason. No copy of the Bill of Rights, or of the two articles in question, are to be found among Patrick Henry's papers, nor does Henry anywhere assert his authorship of these two articles, nor was such a claim made for him during his lifetime. There is only the unsupported statement of Edmund Randolph, committed to writing probably thirty years after the events which he recalls; whereas there is the deliberate assertion of George Mason in the confidence of private correspondence only two years and six months from the time of which he speaks that the Declaration of Rights was entirely his own composition, an assertion repeated by him, in substance, in the brief endorsement on the original drafts of this paper The biographer of Edmund Randolph practically concedes that the latter must have been mistaken in his recollection of the matter.'

now extant.

Corroborative testimony of Mason's authorship of the thirteenth article in the original draft is obtained through the paper drawn up by him for the Fairfax Independent Company in 1775. The first five articles of the Bill of Rights are also to be traced to this paper. In this business of a volunteer company, obscure and local in its nature, we find broad and general principles laid down, and it proved to be, as it were, a study for the great State paper of 1776. One of its postulates was "that no institution can be long preserved, but by frequent recurrence to those maxims on which it was formed." This is the groundwork of the thirteenth article (the fifteenth article, as the Bill of Rights now stands), yet we are asked to believe that George Mason in drafting the Bill of Rights studiously omitted what he had so recently declared of such importance, and that it was supplied by an amendment of Patrick Henry's. The paper, prepared for the conduct of a military organization, would naturally only touch upon civil not upon religious liberty, but in a charter of government the two ideas 1 "Life of Edmund Randolph," p. 158. By Moncure D. Conway.

THE THIRteenth section.

239

would inevitably be found together. And George Mason wrote in the letter from which we have quoted: "We have laid our new government upon a broad foundation, and have endeavored to provide the most effectual securities for the essential rights of human nature, both in civil and religious liberty." The italics are ours. It is not credible that, holding such views, George Mason in his draft of a Bill of Rights should ignore the principle of religious liberty, and in the light of his consistent advocacy of religious freedom, in every stage of his public life from 1776 to 1788, the moral impossibility of his having omitted such an article from his "ground and plan" of a Declaration of Rights is clearly manifest. Mason's paper, it may be affirmed with almost absolute certainty, was prepared by him before he appeared in Convention. The whole subject, very much of it as we find it there, had been thought out, it is apparent, months before and committed to writing. He certainly would not be idle at such a crisis. Nor would it be characteristic of him to present a plan that was in any way crude or incomplete. The principles of his Declaration of Rights were not original with him, of course. They were as old, some of them, as the Roman jurisprudence, and are to be found, more or less developed, in Montesquieu, Algernon Sydney, Locke, and others.

It may be expedient here to examine briefly the history of the Bill of Rights in its passage through the committee and through the Convention to see how the original draft fared in these two ordeals. Among George Mason's papers has been found a copy of the Declaration, the first part of it in the handwriting of Mason and the remainder in the handwriting of Thomas Ludwell Lee. It is interesting as showing the appearance of the paper in one of its stages, as it was passing through the committee, and it indicates the order in which the articles were taken up for consideration. An article relating to ex post facto laws was added, and two other amendments were alluded to as likely to be adopted. There are also verbal changes in several of the original articles.' 1 Appendix x.