Saturday, May 31, 2014

The Virginia Declaration of Rights

In early May, 1776, Congressman John Adams co-sponsored a resolution calling of the colonies to “adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general.”

On May 15, Congress adopted the resolution with a preamble Adams wrote that asserted that the people in their colonies were sovereign and governed themselves by their own consent.  The preamble virtually amounted to a declaration of independence from Great Britain.  The preamble read:

It is necessary that the exercise of every kind of authority under the said Crown should be totally suppressed, and all the powers of government exerted under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order as well as for the defense of their lives, liberties and properties, against the hostile invasions and cruel depredations of their enemies.

On that same day, the delegates to the Fifth Virginia Convention (the governing body of the colony) assembled in Williamsburg and instructed its delegates in Philadelphia to “propose to that respectable body to declare the United Colonies free and independent states, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain.”  The Convention then drafted a declaration of rights and a constitution based upon Congress’ resolution.  Patrick Henry, James Madison, and George Mason were among the notables appointed to the committee to draft the declaration of rights. 

The resulting Virginia declaration of rights was one of the most significant expressions of American Founding principles.  Its Lockean principles of self-government would shape Thomas Jefferson’s Declaration of Independence in Philadelphia a month later and the American Constitution and Bill of Rights over a decade later. 

When it was adopted on June 12, 1776, the declaration averred the universal principle that all humans have certain fundamental rights by nature that government cannot violate.  The slaveholders of Virginia recognized the import of these universal principles for slavery and added the section about not being divested of those rights “when they enter into a state of society.”   The declaration read, in language that would influence the Declaration of Independence:

That all men are by nature equally free and independent, and have certain inherent 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.

The declaration supported the Lockean idea of a social compact that the sovereign people formed a representative government with the purpose of protecting their rights.  It stated, “That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants.” 

The declaration upheld the principle that the same people had a right to rebel against tyrannical government that violated their rights and form a new government.  In language that strongly shaped the Declaration of Independence, the Virginia declaration stated: “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, in such manner as shall be judged most conducive to the public weal.” 

The declaration included several principles of a constitutional republic that would undergird the American system of self-government.  For example, it contained a the ban on “descendible” or “hereditary” privileges and offices.  The declaration also asserted that, “the legislative and executive powers of the state should be separate and distinct from the judicative,” supporting the ideas of Montesquieu for a separation of powers that would influence James Madison at the Constitutional Convention.  An important characteristic of government by consent was to have “frequent, certain, and regular elections” which were fixed and free.

The declaration also placed stringent limits on the power of government and reserved those powers to the consent of the people.  The people could not taxed without their consent, the government could not suspend laws without the consent of the people, and the accused had many rights that the lawful government was bound to respect – know the cause of an accusation, confront witnesses, enjoy a fair and speedy trial by his peers, not incriminate himself, not lose his fundamental rights without due process, or be arrested without a warrant.  These formed the basis of the Fourth, Fifth, and Sixth Amendments in the Bill of Rights. 

Additional protections in Virginia that would eventually influence the Bill of Rights were no excessive bail, no excessive fines, and no cruel and unusual punishments.  In a strong statement of the importance of the connection between a free press and republican liberty, the declaration stated: “That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” 

Besides a clause for an armed people forming a militia for the “safe defense of a free state,” the declaration affirmed its opposition to “standing armies, in time of people . . . avoided as dangerous to liberty” and a military that was “under strict subordination to, and be governed by, the civil power.”  Thus, it helped shape the Second Amendment and asserted principles that General George Washington would embody in his actions resigning at the end of the Revolutionary War. 

As in several other statements before and during the Revolutionary War, the Virginians proclaimed that republican self-government was rooted upon the virtue of the people and natural law.  “That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”

Although George Mason sought to include the revolutionary and Lockean idea of religious tolerance into the document, Madison amended the statement to be a broad statement of religious liberty of conscience as a fundamental natural right.  The declaration stated:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

The Virginia Declaration of Rights is studied every year by schoolchildren in Virginia, but it should be studied by students and citizens everywhere as one of the core documents of American liberty and Founding principles standing alone and as a document that laid the foundation for our other most important Founding documents. 
Tony Williams is the Program Director of the WJMI and the author of America’s Beginnings: The Dramatic Events that Shaped a Nation’s Character. 

Image: Adoption of the Virginia Declaration of Rights, oil painting by Jack Clifton. Virginia State Artwork Collection: acquired: 1974, Library of Virginia.

Wednesday, May 21, 2014

Jefferson & Madison and the Principles of American Government

Early in the year 1825, Thomas Jefferson and James Madison corresponded on the subject of a government textbook for the school of law at the recently chartered University of Virginia, which would be opening for classes in March of that year.  Jefferson was the Rector, and his close friend and political collaborator, Madison, was a member of the Board of Visitors.  Declining to prescribe a textbook for any other subjects such as science or mathematics, Jefferson felt that he and Madison were qualified as the “best judges” as to the principles of government that should be taught at the new university. The following two letters ultimately served as the basis for the Resolution of March 4, 1825, adopted by Jefferson, Madison, and the other members of the Board of Visitors, that sets forth an immensely valuable, and profoundly significant description of the authentic sources of the principles of American government and of the Constitution.

Thomas Jefferson to James Madison
Monticello, February 1, 1825
Dear Sir
…In most public seminaries a text-book is prescribed to the several schools as the Norma docendi in them; and this is frequently done by the Trustees. I should not propose this generally in our University because I believe none of us are so much at the heights of science, in the several branches, as to undertake this, and therefore that it will be best left to the Professors, until occasion of interference shall be given. But there is one branch in which I think we are the best judges, and the branch itself is of that interesting character to our state, and to the U S. as to make it a duty in us to lay down the principles which are to be taught. It is that of Government. …I think it a duty to guard against danger by a previous prescription of the texts to be adopted. I enclose you a resolution which I think of proposing at our next meeting, for your consideration, with a prayer that you will correct it freely, and make it what you think it ought to be…
Affectionately yours.
Thomas Jefferson

James Madison to Thomas Jefferson
      Montpellier, February 8, 1825
Dear Sir
…I have looked with attention over your intended proposal of a text book for the Law School. It is certainly very material that the true doctrines of liberty, as exemplified in our Political System, should be inculcated on those who are to sustain and may administer it. It is, at the same time, not easy to find standard books that will be both guides & guards for the purpose. Sidney & Locke are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire a love of free ones; but afford no aid in guarding our Republican Charters against constructive violations. The Declaration of Independence, though rich in fundamental principles, and saying every thing that could be said in the same number of words, falls nearly under a like observation. The "Federalist" may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authority which accepted it. Yet it did not foresee all the misconstructions which have occurred; nor prevent some that it did foresee. And what equally deserves remark, neither of the great rival Parties have acquiesced in all its comments. It may nevertheless be admissible as a School book, if any will be that goes so much into detail. It has been actually admitted into two Universities, if not more — those of Harvard and Rhode Island; but probably at the choice of the Professors, without any injunction from the superior authority.

With respect to the Virginia Document of 1799, there may be more room for hesitation. Though corresponding with the predominant sense of the Nation; being of local origin & having reference to a state of Parties not yet extinct, an absolute prescription of it, might excite prejudices against the University as under Party Banners, and induce the more bigoted to withhold from it their sons, even when destined for other than the studies of the Law School. It may be added that the Document is not on every point satisfactory to all who belong to the same Party. Are we sure that to our brethren of the Board it is so? In framing a political creed, a like difficulty occurs as in the case of religion though the public right be very different in the two cases. If the Articles be in very general terms, they do not answer the purpose; if in very particular terms, they divide & exclude where meant to unite & fortify. The best that can be done in our case seems to be, to avoid the two extremes, by referring to selected Standards without requiring an unqualified conformity to them, which indeed might not in every instance be possible. The selection would give them authority with the Students, and might control or counteract deviations of the Professor.

I have, for your consideration, sketched a modification of the operative passage in your draft, with a view to relax the absoluteness of its injunction, and added to your list of Documents the Inaugural Speech and the Farewell Address of President Washington. They may help down what might be less readily swallowed, and contain nothing which is not good; unless it be the laudatory reference in the Address to the Treaty of 1795 with Great Britain which ought not to weigh against the sound sentiments characterizing it.

After all, the most effectual safeguard against heretical intrusions into the School of Politics, will be an Able & Orthodox Professor, whose course of instruction will be an example to his successors, and may carry with it a sanction from the Visitors.
Affectionately yours,
James Madison

Sketch [Resolution for the Board of Visitors].

And on the distinctive principles of the Government of our own State, and of that of the United States, the best guides are to be found in — 1. The Declaration of Independence, as the fundamental act of Union of these States.  2. The book known by the title of the "Federalist," being an Authority to which appeal is habitually made by all & rarely declined or denied by any, as evidence of the general opinion of those who framed & those who accepted the Constitution of the United States on questions as to its genuine meaning. 3. The Resolutions of the General Assembly of Virginia in 1799, on the subject of the Alien & Sedition laws, which appeared to accord with the predominant sense of the people of the U. S.  4. The Inaugural Speech & Farewell Address of President Washington, as conveying political lessons of peculiar value; and that in the branch of the School of law which is to treat on the subject of Government, these shall be used as the text & documents of the School.
[Abbreviations and spelling modernized]
Photo of the Rotunda (c) 2014 by Anna Quillon [used with permission]