The Writings, Vol. 1

(1769-1783)

By James Madison

[Excerpted from; The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900).]

1776 - Independence and Constitution of Virginia.

Madison Manuscript

Journal of the Virginia convention in 1776.

May 10.

A representation* from the Committee of the County of Augusta was presented to the Convention, setting forth the present unhappy situation of the country; and from the ministerial measures of vengeance now pursuing, 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: ordered that the said representation be referred to the committee on the State of the Colony. [quere, as to the date of this representation, and whether the document be on the public files.]

May. 15.

The Convention, one hundred and twelve members being present, unanimously agreed as follows “Forasmuch as all endeavours of the United Colonies, by the most decent representations and petitions to the king and parliament of Great Britain, to restore peace and security to America under the British Government, and a reunion with that people upon just and liberal terms, instead of a redress of grievances, have produced—from an imperious and vindictive administration increased insult, oppression, and a vigorous attempt to effect our total destruction: By a late act, all these colonies are declared to be in rebellion, and out of the protection of the British crown, our properties subjected to confiscation, our people when captivated, compelled to join in the murder and plunder of their relations and countrymen, and all former rapine and oppression of Americans delared legal and just. Fleets and armies are raised, and the aid of foreign troops engaged to assist these destructive purposes. The king’s representative in this colony hath not only witheld all the powers of Government from operating for our safety, but having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves, by every artifice, to resort to him, and training and employing them against their masters. In this state of extreme danger we have no alternative left, but an abject submission to the will of those overbearing tyrants, or a total separation from the crown and Government of Great Britain, uniting and exerting the strength of all America for defence, and forming alliances with foreign powers for commerce and aid in war: wherefore, appealing to the Searcher of Hearts, for the sincerity of former declarations expressing our desire to preserve the connexion with that nation, and that we are driven from that inclination by their wicked councils, and the eternal laws of self-preservation;

Resolved unanimously, That the delegates appointed to represent this colony in General congress, be instructed 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; and that they give the assent of this Colony to such declaration, and to whatever measures may be thought proper and necessary by the congress for forming foreign alliances, and a confederation of the colonies, as such times, and in the manner, as to them shall seem best: Provided, that the power of forming Government for, and the regulations of the internal concerns of each colony, be left to the respective colonial legislatures.

Resolved unanimously, that a committee be appointed to prepare a Declaration of Rights, and such a plan of Government as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people.

And a committee was appointed of the following members: viz Archibald Cary, Meriwether Smith, Mr. Mercer, Mr. Henry Lee, Mr. Treasurer—[Robert Carter Nicholas] Mr. Henry, Mr. Dandridge, Mr. Edmund Randolph, Mr Gilmer, Mr Bland, Mr. Diggs, Mr. Carrington, Mr. Thomas Ludwell Lee, Mr Cabell, Mr. Jones, Mr. Blair, Mr Fleming, Mr. Tazewell, Mr Richard Cary, Mr. Bullitt, Mr Watts, Mr. Banister, Mr. Page, Mr. Starke, Mr. David Mason, Mr. Adams, Mr Read, and Mr. Thomas Lewis.

May 16.

Ordered that Mr. Madison, Mr Rutherford and Mr. Watkins be added to the Committee appointed to prepare a Declaration of Rights and a plan of Government.

May. 18.

Ordered that George Mason be added to that Committee.

[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.]

May 21.

Ordered that Mr Bowyer be added to the committee appointed to prepare a Declaration of Rights and plan of Government.

May 27.

Mr. Cary reported a Declaration of Rights, which was ordered to be printed for the perusal of the members. [See a printed copy in the hands of J. M.]

Ordered: that Mr Curle and Mr. Holt be added to the committee appointed to prepare a Declaration of Rights and plan of Government.

June 10.

The Declaration of Rights, reported from a committee of the whole, with several amendments.

June 11.

The Amendments to the Declaration of Rights agreed to, and the whole ordered to be transcribed for a third reading.

June 12.

The Amended Declaration of Rights agreed to nem: con. [See the copy below.]

June 24.

Mr. Cary reported from the appointed committee “a plan of Government for this Colony,” which was ordered to be read a second time.

June 26.

In committee of the whole on the reported plan of Govt. progress made and reported.

June 27.

In committee of the whole on the Plan, & progress reported.

June 28.

The plan reported from the Committee of the whole, with amendments, & ordered to be transcribed & read a third time.

June 29.

Resolved unanimously that the said plan do pass.

(As printed by order of the convention)

The following declaration* was reported to the convention by the committee appointed to prepare the same, and referred to the consideration of a committee of the whole convention; and in the meantime, is ordered to be printed for the perusal of the members.

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 us, and our posterity, as the basis and foundation of Government.

1. That all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

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.

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 mal-administration; 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.

4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of publick services; which not being descendible or hereditary, the idea of a man born a magistrate, a legislator, or a judge, is unnatural and absurd.

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 burdens 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.

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.

7 That no part of a man’s property can be taken from him, or applied to publick uses, without his own consent, or that of his legal representatives; nor are the people bound by any laws but such as they have, in like manner, assented to, for their common good.

8. 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.

9. That laws having retrospect to crimes, and punishing offences, committed before the existence of such laws, are generally oppressive, and ought to be avoided.

10. That in all capital or criminal prosecutions, as man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers or witnesses, to call for evidence in his favour, 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 judgment of his peers.

11. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

12. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and ought not to be granted.

13. 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.

14. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.

15. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence 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 governed by the civil power.

16. That the people have a right to uniform Government; and therefore, that no Government separate from, or independent of the Government of Virginia, ought of right, to be erected or established, within the limits thereof.

17. 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.

18. That Religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence: and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished, and unrestrained by the magistrate, unless under colour of religion, any man disturb the peace, the happiness, or safety of Society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other.*

(Copy of a printed paper, in the hands of J. M.)

A PLAN OF GOVERNMENT

Laid before the Committee of the House, which they have ordered to be printed for the perusal of the members.*

1. Let the Legislative, executive and judicative departments be separate and distinct, so that neither exercise the powers properly belonging to the other.

2. Let the legislative be formed of two distinct branches, who, together, shall be a complete legislature. They shall meet once, or oftener, every year, and shall be called the GENERAL ASSEMBLY OF VIRGINIA.

3. Let one of these be called the Lower House of Assembly, and consist of two delegates, or representatives, chosen for each county annually, by such men as have resided in the same for one year last past, are freeholders of the county, possess an estate of inheritance of land in Virginia, of at least one thousand pounds value, and are upwards of twenty four years of age.

4. Let the other be called the Upper House of Assembly, and consist of twenty four members, for whose election, let the different counties be divided into twenty four districts, and each county of the respective district, at the time of the election of its delegates for the Lower House, choose twelve deputies, or subelectors, being freeholders residing therein, and having an estate of inheritance of lands within the district, of at least five hundred pounds value: In case of dispute, the qualifications to be determined by the majority of the said deputies. Let these deputies choose by ballot, one member of the Upper House of Assembly, who is a freeholder of the district, hath been a resident therein for one year last past, possesses an estate of inheritance of lands in Virginia, of at least two thousand pounds value, and is upwards of twenty eight years of age. To keep up this Assembly by rotation, let the districts be equally divided into four classes and numbered.

At the end of one year, after the general election. Let the six members elected by the first division be displaced, rendered ineligible for four years, and the vacancies be supplied in the manner aforesaid. Let this rotation be applied to each division according to its number, and continued in due order annually.

5. Let each House settle its own rules of proceeding, direct writs of election for supplying intermediate vacancies; and let the right of suffrage both in the election of members for the Lower House, and of deputies for the districts, be extended to those having leases for land, in which there is an unexpired term of seven years, and to every Housekeeper who hath resided for one year last past, in the county, and hath been the father of three children in this country.

6. Let all laws originate in the Lower House, to be approved or rejected, by the Upper House; or to be amended with the consent of the Lower House, except money bills, which in no instance shall be altered by the Upper House, but wholly approved or rejected.

7. Let a Governour, or Chief Magistrate be chosen annually by joint ballot of both Houses; who shall not continue in that office longer than three years successively, and then be ineligible for the next three years. Let an adequate, but moderate salary, be settled on him, during his continuance in office; and let him, with the advice of a council of State, exercise the executive powers of Government, and the power of prorouging or adjourning the General Assembly, or of calling it upon emergencies, and of granting reprieves or pardons, except in cases where the prosecution shall have been carried on by the Lower House of Assembly.

8. Let a privy Council, or Council of State, consisting of eight members, be chosen by joint ballot of both Houses of Assembly, promiscuously, from their own members, or the people at large, to assist in the administration of Government.

Let the Governor be President of this council; but let them annually choose one of their own members, as Vice-President, who, in case of the death or absence of the Governour, shall act as Lieutenant Governour. Let three members be sufficient to act, and their advice be entered of record in their proceedings. Let them appoint their own clerk, who shall have a salary settled by law, and taken an oath of secrecy, in such matters as he shall be directed to conceal, unless called upon by the Lower House of Assembly for information. Let a sum of money, appropriated to that purpose, be divided annually among the members, in proportion to their attendance: and let them be incapable, during their continuance in office, of sitting in either House of Assembly. Let two members be removed by ballot of their own Board, at the end of every three years, and be ineligible for the three next years. Let this be regularly continued, by rotation, so as that no member be removed before he hath been three years in the council: and let these vacancies, as well as those occasioned by death or incapacity, be supplied by new elections, in the same manner as the first.

9. Let the Governour, with the advice of the Privy council, have the appointment of the Militia officers, and the Government of the militia, under the laws of the country.

10. Let the two Houses of Assembly, by joint ballot, appoint judges of the supreme court, judges in chancery, judges of Admiralty, and the attorney-general, to be commissioned by the Governour, and continue in office during good behaviour. In case of death or incapacity, let the Governour, with the advice of the privy council, appoint persons to succeed in office pro tempore to be approved or displaced by both Houses. Let these officers have fixed and adequate salaries, and be incapable of having a seat in either House of Assembly, or in the Privy Council; except the Attorney-general, and the treasurer, who may be permitted to a seat in the Lower House of Assembly.

11. Let the Governour, and Privy Council, appoint justices of the peace for the counties. Let the clerks of all the courts, the sheriffs and coroners, be nominated, by the respective courts, approved by the Governour and Privy Council, and commissioned by the Governour. Let the clerks be continued during good behaviour, and all fees be regulated by law. Let the justices appoint constables.

12. Let the Governour, any of the Privy Counsellors, judges of the supreme court, and all other officers of government, for mal-administration, or corruption, be prosecuted by the Lower House of Assembly (to be carried on by the attorney-General, or such other person as the House may appoint) in the supreme court of common law. If found guilty, let him or them be either removed from office; or for ever disabled to hold any office under the Government; or subjected to such pains or penalties as the laws shall direct.

13. Let all commissions run in the name of the Commonwealth of Virginia, and be tested by the Governour, with the seal of the commonwealth annexed. Let writs run in the same manner, and be tested by the clerks of the several courts. Let indictments conclude, Against the peace and dignity of the commonwealth.

14. Let a treasurer be appointed annually, by joint ballot of both Houses.

15. In order to introduce this government, let the representatives of the people, now met in Convention, choose twenty four members to be an upper House; and let both Houses, by joint ballot, choose a Governour and Privy Council; the upper House to continue until the last day of March next; and the other officers, until the end of the succeeding session of Assembly. In case of vacancies, the President to issue writs for new elections.*

As agreed to by the Convention.

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.

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 can not by any compact, deprive or divest their posterity: namely, the enjoyment of life and liberty, with the means of acquiring & possessing property, and preserving and obtaining happiness and safety.

2. The same.

3. The same.

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 to be hereditary.

5. That the Legislative and executive powers of the State should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens 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.

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.

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.

8. That in all capital or criminal prosecutions, as 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 favour, and to a speedy trial by an impartial jury of the 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 judgment of his peers.

9. The same as No. 11.

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 offence is not particularly described and supported by evidence are greivous and oppresive and ought not to be granted.

11. The same as No 13.

12. The same as No. 14.

13. The same as No 15.

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.

15. The same as No. 17.

16. That Religion, or the duty we owe to our CREATOR, and the manner of discharging it can be directed only 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.

Copy of the Constitution as finally agreed to by the convention of 1776.

The Legislative, Executive and Judiciary Departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others; nor shall any person exercise the powers of more than one of them at the same time except that the Justices of the county courts shall be eligible to either House of Assembly

The Legislative shall be formed of two distinct branches, who

[1 ]The whole of this paper was transcribed by Madison after his retirement to private life. An exhaustive establishment of George Mason’s authorship of the Declaration of Rights as a whole may be found in Kate Mason Rowland’s Life of George Mason. The authorship of the clause concerning religious liberty, which, as the draft shows, was originated by Madison, is in dispute. Edmund Randolph attributed it to Patrick Henry, but Miss Rowland insists that Mason wrote it. See Life of George Mason, i., 241 et seq.; also Conway’s Edmund Randolph, 158. Madison introduced his amendment in the convention itself, but if he spoke upon it, which is improbable, as he was then mastered by his modesty and youth, there is no record of it. The Plan of Government, from which the Constitution was evolved, was, according to unsupported tradition, written by Meriwether Smith (see Madison’s letter to Mason’s grandson, 29 December, 1827). In the construction of the Constitution itself Mason’s was the master hand, and it is highly probable that he also wrote the Plan. See Miss Rowland’s Life of George Mason; also for an earlier impression of Madison, Madison to Washington, Oct. 18, 1787, where he incidentally speaks of the Constitution as having been drawn by Mason; and his letter to Judge Woodward, Sept. 11, 1824; also Rives, i., 163 n.

[* ]Quere—its date.

[* ]It was drafted by George Mason.

[* ]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 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 or 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. [Note in MS.]

[* ]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. 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. [Note in MS.]

[* ]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. [Note in MS.]