In 1776, Virginia adopted a Declaration of Rights, which influenced James Madison’s later draft of the Bill of Rights. Madison had a small hand in writing the Virginia Declaration, although George Mason was the primary author. The Declaration omits references to English law and colonial charters (which earlier American declarations of rights typically relied upon). Instead, it used natural law as the source of individual rights (Jefferson would rely upon similar language when drafting the Declaration of Independence).
A remarkable number of rights in the Virginia Declaration found their way into the federal Bill of Rights, which was likely an indication that a consensus had formed among Americans over what rights should be protected by law during the years leading up to independence.
There are a couple of general questions you can ask students about this and several other documents. First, which rights are named in this document and in the Bill of Rights? Second, do you notice any differences in the language used for those rights? In answering the first question, you can point out to students that a consensus had developed among colonists about most of the essential rights, which is why you find them repeated in so many places. In part this was because the colonists were drawing upon a common English heritage, and in part it was because the colonies had similar complaints about English mistreatment during the lead-up to the Revolution. Because of bodies such as the Stamp Act Congress and the Continental Congress, the leading figures from the various colonies also communicated with one another about these issues. In answering the second question, you can trace how some of these rights were new enough that the process of defining them was still evolving. For the Eighth Amendment, the language is quite similar to the Virginia Declaration. This was a long-established right that needed little discussions or debate. But the Fourth Amendment was more of an innovation. As you move through the documents, you can see how the protections become more explicit and precise over time.
- Do you see any sections that might have influenced the Declaration of Independence?
- Do you see any sections that might have influenced the U.S. Constitution?
- How many rights can you find in this document that are also in the Bill of Rights?
- Section 10 protects Virginia citizens against unreasonable searches. How does it compare to the Fourth Amendment? Does it seem to offer more or less protection?
- Section 16 protects religious freedom. How does it compare to the section on freedom of religion in the First Amendment? Which version seems to offer more protection?
The Virginia Declaration of Rights
A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free convention which rights do pertain to them and their posterity, as the basis and foundation of government.
Section 1. 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.
Section 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.
Section 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, 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.
Section 4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge be hereditary.
Section 5. That the legislative and executive powers of the state should be separate and distinct from the judicative; and, that the members of the two first may be restrained from oppression by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.
Section 6. That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.
Section 7. That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is injurious to their rights and ought not to be exercised.
Section 8. That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgement of his peers.
Section eight included most of the rights also named in the Fifth and Sixth Amendments.
Section 9. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.
The Eighth Amendment is a virtual carbon copy of this.
Section 10. That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
The colonists hated the general warrants that British officials issued, so it was not surprising that they wanted to stop the practice. Even at this early stage, many of the most important protections were in place–the need for some kind of evidence to issue the warrant and the need to be specific both about the place to be searched and about the person for whom you are searching. The most striking difference is that the section says only that one “ought” not to grant a warrant that does not follow those safeguards. In the Bill of Rights, “ought” becomes “shall.”
Section 11. That in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.
This was a precursor to the Seventh Amendment.
Section 12. That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.
Freedom of the press was an American innovation. Even at this relatively early date, the colonists already saw this as an essential right.
Section 13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
This was a precursor to the Second Amendment, although the Second Amendment added the phrase of the “right of the people to keep and bear arms,” which has bedeviled the nation’s courts in recent decades.
Section 14. That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.
Section 15. 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.
Section 16. 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.
This section did protect freedom of conscience, but it had nothing to say about the establishment of a state religion. Virginia would not act on that until 1786 (see the section of the Virginia Statute for Religious Freedom). And there was a presumption that Virginia citizens would be Christians (the 1786 statute would also strip away this religious preference).