All Commentary
Tuesday, December 1, 1981

George Mason: Father of the Bill of Rights

Without the Bill of Rights, the Constitution might have restrained nothing

Dr. 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: Nelson-Hall, 1979), includes attention to concepts of limited government and stability, his principal area of academic interest. His current research deals with the roots of the Declaration of Independence.

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 tombstone: “Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the Statute of Virginia for religious freedom, and father of the University 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 education. No mention was made by him that he had attained the very highest political offices of his state and nation: Governor of Virginia, Secretary 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 Declaration? How original and how complete was his authorship of this document? 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 established and likely to endure. However, there is little or nothing in the Declaration in concept or language that had not been previously written by Spanish and Italian Jesuits of the seventeenth century, John Morin Scott (17307-1784) of New York, James Otis (1725-1783) of Massachusetts, Filippo Mazzei (1730-1816) of Italy and Virginia, Richard Bland (1710-1776) of Virginia, Thomas Paine (1737-1809) of England and Pennsylvania, and George Mason (1725-1792) of Virginia. What is more, Jefferson was most probably familiar with all of these prior writings with the possible 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 to James Madison dated Aug. 30, 1823: “I did not consider it as any part of my charge to invent new ideas altogether and to offer no sentiment which had ever been expressed before.”

A Necessary Connection

It does not diminish the honor that of right belongs to Jefferson, therefore, if we call attention to the contribution of others to the Declaration 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 “necessary” connection. For we may regard the original Constitution, the Bill of Rights, and especially Amendments XIII, XIV, XV, and XIX, as “necessary” to implementation of the ideas stated in the Declaration.

And this is where proper recognition of the role of George Mason also becomes “necessary” to an improved perspective of historical development and justice to the memory of Mason. For not only did Mason make an important immediate contribution to the Declaration of Independence, but he also anticipated in general the structure and principles of government contained in the Constitution of the United States and those amendments which most added to freedom and equality before the law in America. We may also observe 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 actor during both events.

Robert Allen Rutland says of Mason’s participation during the Constitutional 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 indisputably viewed each other as honorable, kindred spokesmen and were the warmest of allies, pleased with and supportive of each 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, and line of argument even had Mason’s Virginia Declaration of Rights not been available to Jefferson. Perhaps 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. Indeed, a careful reading of the Virginia Bill indicates that its influence on the contents of the Declaration of Independence is much less than its contribution to the Bill of Rights of the Constitution of the United States. Also, the Bill of Rights may be of more practical and enduring 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 promoter of individual and group freedom 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 Jefferson who is to be held responsible for the phrase “the pursuit of happiness” that appears in the Declaration. For example, William Satire writes in a column entitled “What Government is For,” that Jefferson departed from Locke’s phrase “life, liberty and property” because, as Satire states it: “A disciple of his, Thomas Jefferson thought that he would give that phrase an inspirational lift, and our Declaration of Independence hails ‘life, liberty and the pursuit of happiness.’ That euphemism started the trouble.”[4] The usually well-informed Satire has strayed into areas dealing with history and political theory where he lacks expertise and has thereby illustrated 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 effect, contained in the earlier Virginia Bill of Rights that was adopted on June 12, 1776, and that even before that date Philadelphia newspapers 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]

The first article of Mason’s Virginia Bill states: “That all men are by nature equally free and independent, and have certain rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring 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, incidentally, the contributions of its framers in 1776 to the Declaration of Rights for the State of Pennsylvania 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 militia. (Mason goes well beyond the Constitution, 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 warrants, but only those specifying the particular person, place, and thing and issued only upon probable cause.

Amendment V: No man to be deprived of liberty or property without due process of law, or compelled to be a witness against himself.

Amendment VI: In all criminal prosecutions 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 processes in his favor.

Amendment VIII: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments 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 Constitution’s Bill of Rights, however. Thus, we may note the following basic provisions that are present in the original articles of the Constitution and are also specified in Mason’s Virginia Bill of Rights: separation of the branches of government, a republican 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 appear 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 perhaps not. Perhaps consciously or subsconsciously property was omitted 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 economic 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 accomplishments and possessions, considers things of the human spirit, including 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 property 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 Virginia 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 because 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 protect the rights and freedom of states and individuals. To his great credit, although Madison adhered to his position 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 national Bill of Rights in fulfillment of their ratification campaign promise.[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 approved of Madison’s version of his Virginia Bill and lived to see the First Ten Amendments go into effect 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 Independence from Great Britain, George Mason were to be more widely associated in the popular mind with the Bill of Rights that carried Independence a step further to “secure the Blessings of Liberty to ourselves and our Posterity” purposed in the preamble of a somewhat incomplete Constitution. []

1.   Paul Leicester Ford, ed., The Works of Thomas Jefferson, 12 vols. (New York: G. P. Putnam’s Sons, 1904-1905), Vol. XII, p. 409.
      For discussion of a significant but too-neglected essay of 1765 by John Morin Scott that presented ideas and language similar to what later appeared in the Declaration, see Raymond 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 of Independence and Its Meaning for Us Today,” The Social Studies, Vol. 57, No. 4 (April, 1966), pp. 147-154, including bibliography.
      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).

2.   Robert Allen Rutland, George Mason, Reluctant Statesman (Charlottesville: University Press of Virginia, Dominion Books, 1963), p. 85.

3.   Ibid., 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 George Mason, 1725-1792 (1892), 2 vols. (New York: Russell & Russell, 1964), e.g., Vol. I, pp. 272-274, and Vol. II, pp. 363-365.

4.   New York Times, 2 March 1981.

5.   James 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.

6.   In addition to The Freeman, Vol. 31, No. 7 (July, 1981), pp. 410-412, the text of the Virginia Bill of Rights is contained in Miller, Gentleman Revolutionary, pp. 337-340 (first draft, printed committee draft, and final version).

7.   Miller, Gentleman Revolutionary, pp. 154155; and Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, published for the Institute of Early American History and Culture (Chapel Hill: University of North Carolina Press, 1955), pp. 44-47 and 66-74.

8.   Henry Cabot Lodge, ed., The Works of Alexander Hamilton, 12 vols. (New York: G. P. Put nam’s Sons, 1904), Vol. I, pp. 3-52, at p. 7.

9.   Miller, Gentleman Revolutionary, pp. 274275 and 296; Rutland, Reluctant Statesman, pp. 89- 107, Rutland, Birth of the Bill of Rights, pp. 192-193; Nathan Schachner, The Founding Fathers (New York: G. P. Putnam’s Sons, 1954), pp. 51-52; and Irving Brant, The Bill of Rights: Its Origin and Meaning (New York: New American Library, Mentor Book, 1967), pp. 42-59.

10.   Rutland, Reluctant Statesman, pp. 106-110; Rutland, Birth of the Bill of Rights, pp. 190210, especially p. 210; Miller, Gentleman Revolutionary, pp. 321-329; and Rowland, Life and Correspondence of Mason, Vol. II, pp. 318-365.