USA > Virginia > The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body, Vol. II > Part 22
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221 The Assembly had been convoked by a proclamation of the Gov- ernor to meet on the 23d of June. It accordingly met on that day, and, after adjusting some difficulties in the bill establishing district courts, adjourned on the 30th, to meet on the third Monday of October following. The approaching session of the Assembly had an effect, whether designed or not, in shortening the session of the Convention; for the members of the latter body had not the audacity of the Con- vention of 1829, which sat a month and a half alongside of the Assem- bly.
222 See his votes on the ayes and noes, ante.
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relating to Federal affairs was the appointment of members to the old Congress; for it was necessary that the old organization should remain entire until it was superseded by the new. Strange as it may appear, there were more candidates for the five seats in the old Congress at the present session than at any previous one; and the explanation may be found in the excited state of parties, each being anxious to gain the influence of Congress, whatever it might be, in its favor. The candidates in nomination were Madison, Cyrus Griffin, John Brown, John Dawson, Ralph Wormeley, Mann Page, John H. Briggs, John Page (of "Rosewell"), Wilson Cary Nicholas, and John Mar- shall. Wormeley was withdrawn before the balloting began. The result was that Griffin, Brown, Madison, Dawson, and Mann Page were chosen. On the 8th of November the Senate pro- ceeded for the first time to choose senators of the United States. Three persons only were in nomination in either house-Madi- son, Grayson, and Richard Henry Lee; the first named repre- senting the friends of the Constitution, the two last its oppo- nents. Lee and Grayson were easily elected.223
The Senate received from the House of Delegates, on the 10th of November, the bill "for the appointment of electors to choose a President, pursuant to the Constitution of government for the United States"; which was referred to the Committee of the Whole, was discussed on the 11th, 12th, and 13th, and, having received several amendments, was ordered to be read the third time; and on the 14th it passed the body without a division. Hugh Nelson was ordered to convey it to the House of Dele- gates, which agreed to all the amendments of the Senate except one, from which that body receded. .
The bill for the election of members of the House of Repre- sentatives was received by the Senate on the 11th, was read the first and ordered to be read the second time. On the 15th it was read a second time, and committed to the whole house on
223 It is well known that Patrick Henry nominated Lee and Grayson at the same time, but the Journals merely give the names of the per- sons nominated. It has been frequently said that George Mason was elected a senator of the United States on this occasion, and declined. His name was not mentioned. (House Journal, and particularly Senate Journal, November 8, 1788.)
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the 18th, when it was discussed; but the Senate declined receiving the report of the committee till the following day, when it was duly received, and a motion made to strike out the words " being a freeholder, and who shall have been a bona-fide resi- dent for twelve months within such district." The design of the bill as it stood was to prevent, partly, the selection of a group of men from the metropolis, and, partly, the choice of a member by another district who had been, or was likely to be, excluded from his own. The motion to strike out failed by a vote of twelve to three. 224 The bill and amendments were then agreed to without a division, and Thomas Lee was requested to return them to the House of Delegates; which body, on the 20th, con- curred in them all.
The Senate also proposed amendments to the bill calling a new Federal Convention, in which the House of Delegates con- curred. The bill authorizing the Executive to make known, by . proclamation, the times and places of appointing electors to choose a President was likewise amended by the Senate; and in all its amendments the House of Delegates concurred, with the exception of one, from which the Senate receded. The resolu- tions respecting the navigation of the Mississippi, which had especial reference to the debate in the Convention on the subject, were agreed to by the Senate, as well as by the House of Dele- gates, unanimously.
Mason was one of the first of our early statesmen to condemn the policy of insufficient salaries for the highest functionaries of the State-a policy which prescribed as a fit reward for the services of a Wythe a sum a modern day-laborer might earn in the course of a year.225 When the bill allowing travelling expenses
224 As this vote shows the political complexion of the Senate at that time, I annex it:
AVES-Burwell Bassett, John Page, and Hugh Nelson.
NOES-John Pride, Turner Southall, John S. Wills, John Coleman, Matthew Anderson, Robert Rutherford, Joseph Jones, John Pope, John P. Duval, Paul Loyall, Nicholas Cabell, and Thomas Lee.
Mason was out of the house when his name was called. Of these Joseph Jones, Pride, and Bassett were members of the present Con- vention.
225 The policy of low salaries for judges prevailed in Massachusetts also until Story gave it a death-blow in the House of Representatives of that State, and the genius of Parsons settled the question.
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to the judges of the General Court, &c., was before the Senate, he voted to amend it by enlarging the per diem of the judge while holding his court, and by raising the standard of remune- ration in other respects. He was sustained by a large majority in striking out sixpence and inserting a shilling; but the other amendments prevailed by a single vote. The bill and amend- ments were returned to the House of Delegates, which refused its concurrence, and sent the bill back to the Senate. Mason, who had only carried the amendments by a single vote, saw that all further effort at that time was vain; and they were receded from without a division.
This session was memorable for the remodelling of the Court of Appeals and the displacement and re-election of all of its judges. The subject has already been alluded to,226 and is only mentioned here as bearing upon the course which Mason followed in the Senate of the United States on the repeal of the judiciary bill of 1800.
At the October session of 1789 he appeared in his seat on the 20th, and nominated John Pride-with whom he had served in the Convention-as Speaker of the Senate, and was sustained by a majority of the House. He took an active part in all its proceedings; but I shall allude at present only to his course on the resolutions ratifying the amendments proposed by Congress to the Constitution of the United States, which were sent to the Senate from the House of Delegates on the 2d of December. They were read a first time and ordered to be committed to the whole House on the following day. They were put off from day . to day till the 5th, when they were discussed in committee, which rose before a decision was made respecting them; and on the following day they were considered with the same result. On the 8th they were reported to the House; and a motion was made to strike out sundry words and insert that "the third, eighth, eleventh, and twelfth amendments adopted by Congress be postponed to the next session of the Assembly for the con- sideration of the people." A vote was taken seriatim on each amendment, and recorded in the Journal. There was a majority of one in favor of the first, of two in favor of the second, of one in ' favor of the third, of six in favor of the fourth, of one in favor of the fifth, and of six in favor of the sixth; the vote on
126 In the review of the session of 1788, ante.
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the seventh was unanimous. And the question recurring that the Senate agree to the resolutions as amended, it was agreed to without a division. On each vote Mason was with the majority. The resolutions as amended were returned to the House of Delegates.
Mason was fully conscious of the weight of responsibility which devolved upon him; and he knew that his conduct would be not only critically scanned in his own time, but would be examined by posterity when the passions of the day would be forgotten, and when it would stand on its own merit alone. Hence, he was altogether conservative. He did not seek to reject the proposed amendments ferfunctorily and finally, but to subject them to the deliberate examination of the people. So solicitous was he do right, and so anxious that in future time his reasons should be fairly known and not left to inference, he and those with whom he acted made the extraordinary request, which was granted, that the views of the majority might be recorded in the Journal.227 On the 12th a paper containing the reasons of the majority, and signed by Mason, Pride, Anderson, Wills, Joseph Jones, Russell, Southall, and Pope, was presented and recorded in the Journal of that day. It is evidently from the pen of Mason, and forcibly maintains those doctrines which Virginia has upheld ever since. After analyzing the several amendments which he sought to postpone, he concludes by say- ing "that of the many and important amendments recommended by the Conventions of Virginia and other States, those propo- sitions contain all that Congress is disposed to grant; that all the rest are by them deemed improper, and these are offered in full satisfaction of the whole; that, although a ratification of part of the amendments that have been prayed for by Virginia would not absolutely preclude us from urging others, yet we conceive that, by the acceptance of particular articles, we are concluded as to the points they relate to. Considering, therefore, that they are far short of what the people of Virginia wish and have asked, and deeming them by no means sufficient to secure the rights of the people, or to render the Government safe and desirable, we think our countrymen ought not to be put off with amendments
227 Senate Journal, December 8, 1789; and for the reasons of the majority, see December 12th, which deserve to be studied.
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so inadequate; and, being satisfied of the defects and dangerous tendency of these four articles of the proposed amendments, we are constrained to withhold our consent to them; but, unwilling for the present to determine on their rejection, we think it our duty to postpone them till the next session of the Assembly, in order that the people of Virginia may have an opportunity to consider them."
The House of Delegates sent back the amendments to the Senate on the IIth, having disagreed to the first, second, and third, and agreed to the fourth. The Senate insisted on their amendments, and Mason was sent to carry their determination to the House of Delegates. On the 14th the House determined to adhere to their disagreement.
The acts referring to the judiciary establishment-especially the bill to amend the District and General Court-which were passed during the session, brought about some clashing between the two houses, and were mainly under the control of Mason, who was the first lawyer of the body.
We will pass rapidly over the proceedings of the Senate, which began its next session on the 18th day of October, 1790. The Federal Congress had held its sessions, and a sadness was cast upon the Assembly by the unexpected death of Colonel Gray- son, who had been one of the two first senators of the United States, and was performing the duties of his office with diligence and ability, when, after the close of the second session, he was about to resume his seat, he died on the way.228
James Monroe was elected over John Walker for the unex- pired term, and for a full term of six years thereafter. The first and leading question on Federal affairs at the present session, as heretofore detailed,229 was in relation to the act of Congress assuming the debts of the States. The House of Delegates passed resolutions declaring the act repugnant to the Constitu- tion of the United States, unjust, and impolitic. These reso- lutions assailed alike the constitutionality and expediency of
228 Grayson's humor brightened to the last. I have heard very old men say that, when the proper title for the Vice-President was dis- cussed in the Senate at its first session, he proposed that it should be " His Limpid Highness," or "His Superfluous Excellency."
229 Review of the session of 1790, ante.
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the measure; and were conveyed to the Senate, on the 21st of November, by Henry Lee (of the Legion). They were referred to a committee of the whole house on the following Monday, when they were put off to Wednesday, and then to the following Monday, and thenceforth were discussed and postponed till the 2Ist of December, when they were amended and agreed to. As soon as they were passed, Mason asked and obtained leave of absence for the remainder of the session. What Chapman Johnson-clarum et venerabile nomen-was in the Senate of Virginia at a subsequent day, Stevens Thomson Mason was, during the time he held a seat in that body, perhaps with this distinctive difference springing from the temperament of the two men, from the caste of their characters, and from the peculier circumstances of the respective eras in which they lived, that Johnson devoted his critical skill and his wide experience of affairs to the domestic legislation of the Commonwealth, and that Mason, who also watched with the strictest vigilance the development of our judicial and general policy, and who was a foremost champion at an extraordinary crisis, believed that the . rights and liberties of the people were placed in jeopardy by the refusal of Congress to accept the amendments to the Federal Constitution proposed by the Convention of Virginia, and that the sternest rule of the interpretation of the powers of that instrument was the only peaceful remedy.
The course pursued by Mason on Federal topics was alto- gether acceptable to the people of Virginia, and when a vacancy occurred in the Senate of the United States by the appointment of Mr. Monroe to the Court of France, he was chosen to fill his place.230 On the 9th of June, 1795, he appeared in his seat in the Senate at the opening of the session; and although some of the measures of the administration most obnoxious to the South had already been disposed of, others were soon to follow which placed him in a delicate and responsible position. In common
230 November 18, 1794. Henry Tazewell was elected a senator the same day in place of John Taylor (of Caroline), resigned, and took his Seat on the 29th of December following, and on the 20th of February was chosen President of the Senate. I have no copy of the Journal of the Senate at hand, but I do not see the name of Mason in Benton's Debates till the time specified in the text. He must, however, have taken his seat when Tazewell took his.
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with all Virginians, and especially with those who had been engaged in military service during the Revolution, he cherished the warmest love and veneration for Washington; but he had been impelled by a sense of duty to oppose, with a large majority of the people of Virginia, many of the leading mea- sures of his administration. He was now to oppose with all his ability a measure which at the time was deemed by its friends a hard one in its effects upon the whole country, but which was believed to be exceedingly injurious to the interests of the South- ern States, and to those of Virginia in particular. The famous treaty with England had been signed by Mr. Jay and the British Minister in London the day after Mason's election by the Assem - bly to a seat in the Senate, had been received by our own Gov- ernment on the 7th of March following, was communicated to a called Senate on the Sth of June, and was ratified on the 24th by a bare constitutional majority. A single vote would have defeated it. Every motion made by the Republican minority to amend the objectionable articles of the treaty was voted down; the enormous losses sustained by Virginia and other Southern States in the abduction of slaves, in the face of solemn treaties, were not only not recognized by the present, but were virtually abjured forever; and the West India trade, which had always been a source of profit to Virginia, was substantially sacrificed. Both these last topics were sore subjects to Virginia. Some of the members of the present Convention had repaired to New York before the evacuation of that city by the British, and had earnestly beseeched the British general to surrender to them their slaves in his possession; but, so far from granting their requests, he had sent the negroes off while the Southern claim - ants were present in the city; and the West India trade, which had been affected by orders in council soon after the peace of 1783, and which had been brought before the Assembly for several years by the petitions of our merchants, had become a subject of sensitive interest to the people at large. Of these important interests the treaty was regarded as a final sacrifice. Even after its ratification by the Senate, Washington was in serious doubt respecting the course he ought to pursue. The exact stipulations of the treaty were not as yet generally known, but enough had got abroad to excite the most serious apprehen- sions. -
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But, apart from the specific provisions of the treaty, there was a well-founded conviction in Virginia that it was one of a series of measures calculated, if not designed, to injure the South and materially check her future development. A bold and well-nigh successful movement had been made a few years before by some of the same men now in power, and especially by Mr. Jay (the negotiation of the obnoxious treaty to surrender the right of navigating the Mississippi to Spain for a period of thirty years), and this fatal scheme might be renewed at any moment, and with the certain prospect of success. Moreover, the practical mea- sures of Federal policy, which had resulted in concentrating a vast moneyed capital in the Northern States, had been injurious to the South, and were likely to prove more fatal in the process of time. Added to these considerations, was a deep sense of wrong felt by Virginia in the stern refusal of the Northern States to accept those amendments to the Federal Constitution which Virginia had pressed both by her Convention and by her Assem- bly in the most solemn manner, and without a belief in the ratification of which that instrument would have been rejected by a decisive majority.
When the treaty was before the Senate two propositions were made by its opponents-one from the North (by Burr), the other from the South (by Henry Tazewell)-and both were rejected. The resolutions of Tazewell-which received the sanction of Mason, and were softened and modified to conflict as tenderly as possible with the views of the majority-were as follows:
"That the President of the United States be informed that the Senate will not consent to the ratification of the treaty of amity, commerce, and navigation between the United States and his Britannic Majesty, concluded at London on the 19th of November, 1794, for the reasons following :
"I. Because so much of the treaty as was intended to terminate the complaints flowing from the inexecution of the treaty of 1783 contains stipulations that were not rightfully or justly requirable of the United States, and which are both impolitic and injurious to their interest; and because the treaty hath not secured that satisfaction from the British Government for the removal of negroes, in violation of the treaty of 1783, to which the citizens of the United States were justly entitled.
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"2. Because the rights of individual States are, by the ninth article of the treaty, unconstitutionally invaded.
"3. Because, however unjust or impolitic it may generally be to exercise the power prohibited by the tenth article, yet it rests on legislative discretion, and ought not to be prohibited by treaty.
"4. Because so much of the treaty as relates to commercial arrangements between the parties wants that reciprocity upon which alone such like arrangements ought to be founded, and will operate ruinously to the American commerce and navigation.
"5. Because the treaty prevents the United States from the exercise of that control over their commerce and navigation, as connected with other nations, which might better the condition of their intercouse with friendly nations.
"6. Because the treaty asserts a power in the President and Senate to control, and even annihilate, the constitutional right of the Congress of the United States over their commercial inter- course with foreign nations.
"7. Because, if the construction of this treaty should not pro- duce an infraction of the treaties now subsisting between the United States and their allies, it is calculated to excite sensations, which may not operate beneficially to the United States.
"Notwithstanding the Senate will not consent to the ratification of this treaty, they advise the President of the United States to continue his endeavors, by friendly discussion with his Britannic Majesty, to adjust all the real causes of complaint between the two nations."
The vote rejecting these resolutions was the same as that by which the treaty was ratified. 231
Up to this period, while Washington, excited by some recent acts of the British Government, was hesitating about the course which he ought to pursue, Mason forwarded, on the 20th of June, an abstract of the treaty to the editor of a Philadelphia paper; and in an instant there was an explosion of public senti- ment against the treaty, then without a parallel in our history,
231 The vote was twenty to ten-exactly two-thirds. Neither the resolutions of Tazewell nor the more downright and pungent ones of Burr are to be found in Benton's Debates, but may be seen in the Sen- ate Journal, and in a small volume containing the treaty and the memo- rials and documents appertaining to it, published by Matthew Carey at the date of the treaty.
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and only equalled by the exasperation excited at a later day by the attack of the Leopard upon the Chesapeake. 232 For a time public opinion appeared to be unanimous against the treaty.233 Public meetings were not as common then as now, but all the commercial cities protested against the treaty as fatal to the prosperity of the country. In Virginia there seemed to be but one opinion on the subject, and the treaty was denounced as unjust and injurious; for it not only deprived her merchants of a trade which they had enjoyed in a greater or less degree for more than a hundred years, but compelled them, with others, to pay their debts to the British in coin, while the British were relieved virtually of all counter claims founded upon the negroes carried off, not by the prowess of war, but in the face of the treaty of 1783. .
There was, after a season, a slight reaction in favor of the treaty, and Mason was denounced as a man who had violated the decencies of life, had wantonly dishonored himself by vio- lating the pledge of secrecy as a senator, and had made any future effort to secure an advantageous treaty with a foreign power impracticable.
On the other hand, his course was applauded with equal zeal by the opposition. Boston, Baltimore, Trenton, and Norfolk not only applauded the act, but bestowed on its author the loftiest panegyric. 234 Mason was sustained by the General Assembly of
232 Judge Marshall thus alludes to the publication of the treaty : "Although common usage, and a decent respect for the Executive and for a foreign nation, not less than a positive resolution, required that the seal of secrecy should not be broken by the Senate, an abstract of this instrument, not very faithfully taken, was given to the public ; and on the 29th of June a senator of the United States transmitted a copy of it to the most distinguished editor of the opposition party in Philadelphia, to be communicated to the public through the medium of the press." ( Life of Washington, revised edition, Vol. II, 364.
233 Judge Marshall says : "In fact, public opinion did receive a con- siderable shock, and men, uninfected by the spirit of faction, felt some disappointment on its first appearance." (Ibid, 364.) The intensity of party feeling at that day may be judged by the fact that so cool a man as the Chief Justice, in revising his account of the affair forty- five years afterwards, could brand with the epithet of factions a large majority of the statesmen and of the people of the last century.
. 334 Boston, in a special resolution, offered by Mr. Austin, extolled Mason's "patriotism in publishing the treaty "; Baltimore gave a vote
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