James Madison Papers

Independence and Constitution of Virginia, [1827?]

Independence and Constitution of Virginia

MS (LC: Madison Papers). This undated document of twenty pages bearing the above title is entirely in JM’s hand.


Editorial Note

Although the date when JM prepared this manuscript must remain uncertain, it could well have been written in the autumn of 1827, during his exchange of letters with George Mason’s grandson about the Virginia Declaration of Rights and first Form of Government, and at a time when a revision of the state constitution was much in the public mind.

The manuscript has considerable unity of content but its eight final sheets, dealing wholly with the first constitution of Virginia, are separately paged. This fact may warrant some doubt whether they were written immediately following the completion of the first twelve pages. If they were not, however, JM’s general title with its mention of “Constitution” would be misleading. Furthermore, the first twelve pages justify the use of the word “Independence” in the title only to the extent that the latter half of page one and most of page two are filled with an accurate copy by JM from the journal of the Convention of its resolves of 15 May 1776, instructing Virginia’s delegates in the Second Continental Congress “to propose to that respectable body, to declare the United Colonies free and independent States” (Proceedings of the Convention, May 1776, pp. 15–16).

The first half of page one of this manuscript contains JM’s transcription of the journal entry of 10 May (ibid., p. 11) recording that a “Committee of the County of Augusta” had sent to the Convention a statement “representing the necessity of making the confederacy of the United Colonies the most perfect, independent, and lasting, and of framing an equal, free, and liberal Government that may bear the test of all future ages.” Clearly pertinent to JM’s subject, these recommendations must have attracted his special interest because he not only copied the full entry but wrote “Quere—its date” in the left-hand margin, and “[quere, as to the date of this representation, and whether the document be on the public files]” at the close of the paragraph. Whether he received an answer to these questions is unknown but, if he did, he succeeded where the present editors have failed. Apparently the “representation” from the Augusta County Committee is lost (Jos. A. Waddell, Annals of Augusta County, p. 241).

Beginning at the bottom of page two of the manuscript and continuing to the middle of page four are JM’s extracts of salient entries in the Convention journal between 15 May and 29 June 1776, dealing with the appointment of the committee to prepare a Declaration of Rights and plan of government and with the timetable of action by the Convention upon the committee’s proposals about each of these subjects, and especially the Declaration of Rights.

This portion has three brief interpolations by JM, not taken from the journal. After “Mr. Treasurer,” listed among the twenty-eight Convention members comprising the first appointees to the committee to propose a Declaration of Rights and a Form of Government, JM inserted “[Robert Carter Nicholas]” so as to make clear who was then the provincial treasurer. After noting, “May 18. Ordered that George Mason be added to that Committee,” JM wrote, “[It is inferred that he was not before present: especially as his name is not on any one of the numerous Committees of antecedent appointment. His distinguished talents, if present, could not have been overlooked.]” JM’s inference was correct. His very similar comment in a letter to George Mason’s grandson on 29 December 1827 (Madison, Letters description begins (Cong. ed.). [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends [Cong. ed.], III, 607) may signify that he prepared this manuscript at about that time. His final interpolation in this section of the manuscript is an addition of “[see a printed copy in the hands of J. M.]” after copying the journal entry of 27 May 1776, providing for the printing of the committee’s proposed Declaration of Rights.

After dividing vertically the last seven and one-half pages of this first part of the manuscript into two columns of approximately equal width, JM transcribed in the left-hand column the Declaration of Rights, “as printed by order of the Convention” (q.v.) immediately after 27 May 1776, when it received its committee’s draft of the document. In the right-hand column, opposite the relevant item in the left-hand column, JM copied the amended wording, if any, of the Declaration of Rights “As agreed to by the Convention” (q.v.).

Except that at the outset of his accurate transcription of the proposed Declaration, JM footnoted, “It was drafted by George Mason,” he refrained from interspersing either column of these pages with any comments of his own until he had reached the end of his copying with the article on religion in the committee’s draft of the Declaration. Above its closing word he placed an asterisk, drew an ink line across the left-hand column, and penned under this line the following remarkable footnote:

“On the printed paper here literally copied is a manuscript variation of this last article making it read ‘That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of Conscience; and therefore that no man or class of men, ought, on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under colour of religion, the preservation of equal liberty and the existence of the State be manifestly endangered.’”

“This variation is in the handwriting of J. M. and is recollected to have been brought forward by him with a view, more particularly to substitute for the idea, expressed by the term ‘toleration,’ an absolute and equal right in all, to the exercise of religion according to the dictates of conscience. The proposal was moulded into the last article in the Declaration, as finally established, from which the term ‘toleration’ is excluded.”

Forgetting what he had done in the Convention, probably over fifty years before, JM in this note blended his first and second amendments of the committee’s article on religion (q.v.) into a largely meaningless whole.

From this analysis of the content of the first twelve pages, it is evident that the Declaration of Rights is their main subject rather than the “Independence” or “Constitution” specified in the general title of the manuscript.

On the other hand, the last eight pages deal altogether with the constitution. They, as JM indicated by his bracketed note at the top of the first page, are in the main devoted to a “copy of a printed paper, in the hands of J.M.” This “paper,” now among his manuscripts in the Library of Congress, is a two-page leaflet, or broadside, probably printed about 10 June 1776, and entitled “A Plan of Government.” Immediately beneath this caption are the words, “Laid before the Committee of the House, which they have ordered to be printed for the perusal of the members.”

Perhaps it was soon after JM received his copy as a member of this committee that he used his quill pen to make this statement read, “Laid before the Committee appointed for that purpose, which they have ordered to be printed for the perusal of the members of the House.” JM followed this amended form when he copied the document in his old age, but added a footnote reading:

“An alteration in the handwriting of J.M. erases ‘of the House’ and inserts after ‘Committee,’ appointed for that purpose; and adds, at the end, after ‘members’ of the House, making the whole read—Laid before the Committee appointed for that purpose, which they have ordered to be printed for the perusal of the members of the House.

“From this correction, it appears that what was laid before the Committee was printed by its order not by that of the Convention, as was done in the case of the ‘Declaration of Rights’ reported by Mr [Archibald] Cary, from the appointed Committee; nor is there in the Journal any order for printing any plan of Government reported to the Convention, from a Committee.”

Except for this alteration, JM accurately copied this “plan of government” in full. The plan was the one submitted by George Mason to the committee of the Convention. Julian Boyd prints an annotated copy of it in his Papers of Thomas Jefferson, I, 366–69. Barring the footnote mentioned above, JM’s transcription is devoid of any further comment by him until he reached its close. He then added the following footnote:

“It is not known with certainty from whom this first draught of a Plan of Government proceeded. There is a faint tradition that Meriwether Smith spoke of it as originating with him. What is remembered by J.M. is that George Mason was the most prominent member in discussing and developing the Constitution in its passage through the Convention. The Preamble is known to have been furnished by Thomas Jefferson.”

In a letter to a grandson and namesake of George Mason on 29 December 1827 (Madison, Letters description begins (Cong. ed.). [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends [Cong. ed.], III, 605–8), JM, after calling Mason “the master builder of the Constitution, and its main expositor and supporter throughout the discussions which ended in its establishment,” somewhat inconsistently expressed strong doubt whether Mason could have been the author of “the primitive draft” represented by the printed “plan of government” which had been submitted to and printed by the committee in June 1776. The passage of over fifty years led JM to forget that this plan was by Mason, even though he correctly recalled the dominant role of Mason in shaping the recommendations of the committee and in steering them, with amendments, through the Convention (cf. with ibid., III, 451–52; also see Brant, Madison description begins Irving Brant, James Madison (6 vols.; Indianapolis and New York, 1941–61). description ends , I, 236). JM, however, correctly stated to Mason’s grandson that the preamble of the constitution had been borrowed from drafts prepared by Jefferson (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (16 vols. to date; Princeton, N.J., 1950——). description ends , I, 331, 337–40, 377–79).

In copying Mason’s printed plan, JM filled the left-hand column of the closing eight pages of his manuscript. Judging from his heading of the right-hand column, “Copy of the Constitution as finally agreed to, by the Convention of 1776,” he intended to present, except for its preamble, the same sort of parallel arrangement which he had completed for the proposed and the official Declaration of Rights. In the case of the constitution, however, he laid the work aside after transcribing its first article and the opening ten words of the second article, which comprised the only alteration of that article as proposed by Mason. In other words, except for JM’s heading, given above, and these two entries, the right-hand column of this manuscript’s last eight pages is entirely blank.

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