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 23
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Virginia by a direct vote and by a re-election to the Senate of the United States. His conduct was approved not only by a large majority of the people of Virginia, but of the Union; and, as the subject was fully canvassed, the decision was as deliberate as it was almost unanimous.
While the judgment of a man's contemporaries is an impor- · tant element in deciding upon his worth, still, as the subject is as interesting now as it was sixty-four years ago, the question recurs whether Mason was excusable for disclosing the outline of the treaty to the people in violation of the rules of the Sen- ate. None will deny that, as a general principle, the rules of a deliberative body-especially in relation to the provisions of a treaty not yet definitely concluded-should be faithfully observed; and none probably will deny that a case is possible when it would become the duty of a patriot to expose the proceedings of a body which were, in his opinion, in manifest violation of the Constitution and hostile to the integrity of the States, though an order of that body enjoined secrecy upon its members. Mason was a Virginian, and was intimately acquainted with the practice of Virginia on such a subject. She had, again and again, called her members of Congress before the Assembly, and required them to discourse of public affairs in Congress, when the pro- ceedings of that body were always as strictly secret as were those of the Senate on particular occasions; and the members appeared and made their representations without scruple. A vote of thanks was given to Meriwether Smith on such an occasion. But the most remarkable case occurred during the session of the present Convention. The right of the navigation of the Missis- sippi had been placed in imminent jeopardy by the Congress; and the Convention, regarding the question as of vital interest to Virginia, whose borders were washed by that stream, in the waters of which she claimed the right of use, called upon the members of Congress to state their proceedings in full, and they
of thanks "to the virtuous minority in the Senate, and to Stevens Thomson Mason, for the patriotic service rendered his country by the disclosure "; Norfolk declared that Mason "is entitled to the thanks of every good citizen and real friend to the Constitution of the United States for his patriotic and independent conduct in rending the veil of senatorial secrecy," &c .; Trenton resolved that Mason "is entitled to the highest veneration, respect, and esteem of his countrymen " for making the disclosure, &c., &c.
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disclosed them without hesitation. 235 The question, then, would seem to have been decided in Virginia that a representative is bound, at the bidding of his constituents, to disclose all his doings in their behalf, even though a rule of the body to which he belonged might be violated by the disclosure. It may be alleged that Mason was not called upon by the Assemby to make a disclosure, but acted on his own responsibility. But if a disclosure at the bidding of the constituent body is justifiable, it is justifiable on the ground of extreme necessity; and of this necessity it may happen-as in the present case- that the repre- sentative only can be the judge. He alone can know exactly the impending dangers; and, if he believe the danger to be so imminent as to involve the dearest rights of his constituents, the mode of proclaiming that danger to them is, at best, a choice of means, and may be as well-perhaps more effectually-done by a publication in a paper of wide circulation as by a letter to the Governor at a time when the Assembly was not in session, and when a day's delay might be fatal. That the stipulations of the treaty were believed seriously to impair the rights and interests of Virginia, has already been shown; and Mason might fairly presume that, if a rule of the Senate were regarded as an obliga- tion incapable of being annulled but by a vote of the body itself, no danger menacing a right or possession of the South could be disclosed until the treaty had become a law, and the disclosure was vain. None will wish that such cases should become fre- quent ; but when they do occur, the great and essential interests of a whole community will more completely control the action of a representative than the rules of the body to which he belongs. Each case must be decided on its own merits. Certain . it is that the course of Mason was sanctioned by those to whom he looked for justification and approval.
When the British treaty was ratified by the Senate, an article was added providing that so much of the twelfth article as
235 Madison boggled, as he knew the disclosures might seal the fate of the Constitution in the Convention, but made the disclosure. It is plain that, in a strictly federal system, it would be absurd to deny the right of the Government to ask explanations from its ministers and servants in relation to a public matter. An inviolable rule of secrecy would sever all connection between the representative and the con- , stituent body.
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related to the intercourse with the West Indies should be sus- pended, and that fresh negotiations should be entered into on the subject. 236 At the same time Gunn (of Georgia) offered a resolution requesting the President further to negotiate concern- ing the payment of the value of the slaves carried off by the British army in violation of the treaty of 1783. This resolution was so modified as not to interfere with the treaty; but it was promptly rejected. The result was, as was predicted at the time, that the West India trade would never more be placed on its old footing, at least for a generation to come;237 and that the stolen negroes would never be paid for; nor have they been to the present hour. 238
. At the December session of 1795 the Senate proceeded, as was then customary, to prepare a response to the President's communication-a practice borrowed from the British Parliament and long since disused, and ever ill-timed, as calculated to antici- pate opinions and to stir party feuds on the threshold of a session. The address inclined to take too favorable a view of our foreign affairs, and Mason moved to strike out the fourth
236 When Mr. Jay made the treaty he was not aware that cotton had become an article of export from the United States.
237 It was secured during General Jackson's administration.
238 My maxim in respect of foreign powers is that of the Declaration of Independence, "Enemies in war, in peace friends"; and that of still higher authority, " Peace on earth and good will to men "; but it is the province of history to record the delinquencies of nations, and those of Great Britain towards us have been formidable. If a bill with accruing interest were made out of the value of our slaves purloined in the face of a solemn treaty, of our commerce sequestered by orders in council which the British tribunals have since pronounced illegal, of the labor of our seamen pressed on board of British ships, of the amount of losses sustained by our embargo and non-intercourse regu- lations into which England forced us, and of the expenses of the war which she compelled us to wage in defence of the common rights of human nature-if all these sums with interest were made into a bill, and that bill placed into the hands of some future senator from Oregon, fresh from his jaunt of five thousand miles by land or fifteen thousand by water, it is quite probable that, to simplify matters, he would pro- prose at once to take possession of the little island, substitute a Terri- torial Legislature for her Parliament, make her a coaling-station for our steamers, and award her, as a matter of extreme grace, the privilege of sending a territorial delegate to Washington.
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and fifth paragraphs. Pierce Butler was disposed to go further, and contended not only for striking out, but for inserting a coun- ter statement. The motion failed by a vote of eight to fourteen ; and the entire address as reported was adopted by the same vote. The slight synopsis which has come down to us of the debates of this session shows several instances in which the roll was called; but Mason does not appear to have been present at the time.
On the 12th of January, 1797, he took his seat in the Senate, and was immediately placed at the head of a committee to which the notification of the House of Representatives of the election of Mr. Jefferson as Vice-President of the United States was referred, and he drew a form which the President was requested to forward to that gentleman, stating his election to the office in question. On the 21st of February a bill to accommodate the President was discussed and passed by a vote of twenty-eight to three, Mason in the minority and Tazewell in the majority.
When the proposition was made in May, 1798, to allow Gene- ral Thomas Pinkney, our Minister to Spain, to receive the cus- tomary presents from His Catholic Majesty on the negotiation of a treaty, it was carried by a vote of seventeen to five-Mason and Tazewell in the negative. On the 25th of June, when the bill to declare the treaties between the United States and the Republic of France null and void was on its passage, Mason opposed it; . but it passed by a vote of fourteen to five. On the 27th, when the notorious bill to define more particularly the crime of treason, and to define and punish the crime of sedition, came up, a motion was made to commit it, which prevailed-Mason and Tazewell in the negative; and on the 29th a motion was made to amend the bill authorizing the President to prevent and regulate the landing of French passengers and other persons who may arrive in the United States from foreign places, so as not to prohibit the migration or importation of such persons as any State may think proper by law to admit. Mason voted in the affirmative in a minority of three. The bill passed the Senate with the usual majority. When the bill from the House of Representatives providing for the valuation of lands and dwelling-houses, and the enumeration of slaves was discussed, Mason moved to add to the end of the eighth section the words: "except such slaves as from fixed infirmity or bodily disability may be incapable of
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labor"; and his amendment prevailed by a vote of eleven to eight. When the treason and sedition bill again came up Mason moved to expunge the words: "Or shall in manner aforesaid traduce or defame the President of the United States or any court or judge thereof, by declarations tending to criminate their motives in, any official transaction"; but he lost his motion by a vote of fifteen to eight; and when the second and leading section of the bill was read, a motion was made to strike it out, which failed by a vote of eighteen to six. And the question on the final passage of a bill, which was destined to overthrow an administration and to blast for years the popularity of its sup- porters, was carried by a vote of eighteen to six, Mason, Taze- well, Anderson, Brown, Howard, and Langdon constituting the minority.
The bill for encouraging the capture of French armed ves- sels by armed ships or vessels owned by citizens of the United States was opposed by Mason; but, like its kindred measures, it prevailed by a vote of sixteen to four-Mason, Tazewell, Brown, and Langdon being the minority. On the passage of the bill for making further appropriations for the additional naval arma- ment, he was in a minority of three-his colleague, Tazewell, and Anderson alone standing by him.
One of the first duties which Mason was required to perform on taking his seat at the December session of 1799 was to com- mit to the grave the remains of his esteemed colleague and friend, Henry Tazewell, who died on the 24th of January. Tazewell had taken his seat in the Senate three days before, but was suffering from an inflammatory attack which had seized him on his route from Virginia. He was seen to be ill, but none believed that his end was near. He was in his forty-eighth year. He entered the Convention of December, 1775, and had con- tinued in that body till the Declaration of Independence by Vir- ginia and the formation of the first Constitution of the Common- wealth. Throughout the war and after its close he remained in the House of Delegates, always maintaining an eminent position in the debates of the House and in the deliberations of the early patriots, until he was called to the bench of the General Court. On the bench of that court he acquired the reputation of an able and learned judge, and had been elevated to the Court of Appeals a short time before he was called upon by the Assembly
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to take a seat in the Senate of the United States. His reputa- tion had preceded him; and during the first session of his attend- ance he was chosen its president pro tempore, an honor which was conferred a second time upon him at the following session.
When the death of Tazewell was announced to the Senate Mason was associated with Brown and Marshall (of Kentucky) in superintending his funeral, which was attended to the place of interment by the Senate in mourning. As he wept at the grave of Tazewell,239 how little did Mason dream, radiant with health as he then was, and quickened by the intellectual contests in which he was daily engaged, that in less than four years he was to die in the same city! But we must not anticipate.
The act further to suspend commercial intercourse with France (from the House of Representatives) came up in the Senate on the 6th of February, but, after several ineffectual motions by the Republicans to amend it, it passed by a vote of eighteen to ten- Mason, of course, in the minority. On the 23d he opposed the bill to augment the salaries of the principal officers of the executive departments, which prevailed by a vote of twenty- two to three; Langdon and Livermore voting with him. I wish he had voted with the majority, as the salaries were very low, that of the Secretary of State not exceeding three thousand dollars, though three thousand dollars then were equal to six thousand now.
The session of the Senate of the United States-beginning in December, 1799-was occupied for many days by a subject which tended as much, perhaps, as any other to precipitate the downfall of the party which governed its deliberations. At this day it seems wonderful that a party consisting of so many pure, able, and honorable men should have been so completely con- trolled by leaders who thought that in a free country conciliation was no part of the policy of statesmen, and who believed that the best mode of securing the affections of the people was by
239 Judge Tazewell was buried in Christ church yard, corner of Fifth and Arch streets, Philadelphia, a few feet from the western wall, and about a fourth of the distance of the entire length of the wall from Arch. A white marble slab, formerly on pillars, but now on the sur- face, protects his remains. The grave of Colonel Innes is near by. For a notice of Judge Tazewell, see my work on the Virginia Conven- tion of 1776, page 79, et seq.
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inspiring them with the terrors of the law. Had the Federal party acted with ordinary prudence during the period when the publication of the correspondence of our Envoys to France had made a general impression in their favor, it is probable that John Adams would have been re-elected, and its members-who were soon to be scattered to the winds-might have received a new lease of life. But the war upon foreigners seeking our shores, and upon the press, alarmed intelligent men, who saw that, under the guidance of such leaders, the liberty of speech, of person, and of the press would soon be as much endangered in a free country as in the despotisms of Europe. The great and absorbing event of the present session was the persecution of an editor. It appears that Colonel Duane, of the Aurora (news- paper), had written and published an article which was distaste- ful to the ruling majority of the Senate; and that body sum- moned him to appear at its bar to answer for the contempt. He appeared once; but, as the Senate refused him the full aid of counsel, he declined to appear a second time. This case, in its various stages, consumed a great deal of time, and without any definitive action. It is to the credit of Mason that he opposed this effort to gag the press in all its stages, and on the final pas- sage of the order. On one of its phases Mason uttered these words of warning:
"He recommended to gentlemen to explore well the ground which the motion of the gentleman from Connecticut had taken, and consider seriously the consequences to which they would be led in pursuing their object. What was to be the course of their proceeding ? What were the embarrassments likely to arise therein? He called the House to view the delicacy of the situ- ation in which they would be involved while defining their newly-discovered privileges and subverting the old acknow- ledged privileges of the liberty of the press-he said the delicacy of their situation, because he considered it a delicate one; for he was far from believing that the privileges of the Senate were as unlimited as the gentleman from Connecticut contended they were; if so, and they proceed to touch the liberty of the press- which they may discover in the end to be secured against the invasion-they will be compelled to retrace every step they are now taking, which will redound neither to their honor nor their discernment. They should be careful how they expose them-
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selves to popular scrutiny in cases respecting their own power for the public mind had already been considerably agitated at what many believed to be an unconstitutional exercise of power. If. session after session, attempts were made to fetter the freedom of the press, the people of the United States would watch with anxious regard every movement of this body. A measure which originated in the Senate, and was subsequently acceded to by the other branch of the Legislature, had been just ground of alarm. It is no wonder they watch our bills as well as our laws; for it must be recollected by many of the gentlemen who hear me that the bill called the Sedition Bill was first introduced here, and that, instead of being what it afterwards became, it was a bill more particularly to define treason and sedition. The good sense of the House-during the time it was upon the table and undergoing a political dissection-cut off from it many of those monstrous excrescences which at first disfigured it, and at last trimmed it into a shapely form; but, after all, it was removed below stairs in a condition not fit to meet the eye of our con- stituents-even obliged to undergo a decapitation ; the head or title of it was struck off, and instead of being a bill defining trea- son-which is a thing totally out of our power, the Constitution having declared in what alone treason should consist-instead of being denominated a bill against sedition, it took the obnoxious head of being a bill to amend the law for punishing certain crimes against the United States."
As Duane would not appear, and as the majority were deter- mined to punish him, it was resolved on the eve of adjournment, by a vote of thirteen to four, that the President of the United States be requested to instruct the proper law officers to com- mence and carry on a prosecution against William Duane, editor of the newspaper called the Aurora, for certain false, defamatory, scandalous, and malicious publications tending to defame the Senate of the United States.
The famous judiciary act-the repeal of which will be presently recorded-was discussed by the Senate at the present session. When the bill to permit slaves, in certain cases, to be brought into the Mississippi territory was on its final passage, it does not appear that there was much discussion on its merits; but it was rejected by a vote of five to fourteen-Mason one of the majority.
At the session of the Senate in December, 1800, the first bill
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on which Mason was called to vote was a bill to erect a mau- soleum to Washington. He sustained it in company with his new colleague, Wilson Cary Nicholas. The vote was not unani- mous, for there was a minority of nine; the choice between a statue and a tomb making the difference among the members. He consistently opposed the policy of shrouding the proceedings of public bodies in secrecy; and when it was proposed in the Senate that no person should be admitted into the gallery while the votes for President and Vice-President were counted, he objected to the proposition, but was left in a minority. The debates of the Senate are so meagre, as reported by Colonel Benton, that we cannot say anything about the course of Mason during the session. Its great event was the election of Mr. Jef- ferson to the Presidency; and when, on the 3d of March, the Senate adjourned in its legislative capacity it was convoked in its executive; and Mason had the pleasure of voting into office his old colleagues who had fought with him against such formidable odds ever since the adoption of the Federal Constitution. From the time when he took his seat in the Senate to the close of the present session, he was in a small minority, but his ability and courtesy conciliated the respect of his opponents, while his heroic devotion to his party, which he believed to be the party of freedom and of union, received the cordial applause of a majority of the people.
In the evening of his honored life, when Thomas Jefferson was led to recount those acts by which he had rendered essential service to his country, he referred with confidence to the term of his presidency in the Senate of the United States, during which he was compelled to endure in silence a course of proceedings which he believed to be in open violation of the spirit and letter of the Constitution. Let others apply the same test to the ser- vices of Mason, who, for a longer term than four years not only beheld those unconstitutional acts in question, but grappled with their supporters, and who, though voted down at the time by a "steady, inflexible, and undeviating " majority,240 made the vic- tories of his enemies distasteful to them at first, and ultimately disastrous, and his measure of fame will be full.
We are now to regard Mason as the leader in the Senate of
240 Mason's own words.
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the great party of which Mr. Jefferson was the chief; and I only regret that my materials as well as my limits will enable me to do him but small justice. His first grand effort was on the repeal of the judiciary act of 1800. On the 8th of January, 1802, the Senate proceeded to consider the resolution offered by Breckenridge (of Kentucky) on the 6th, in the following words: "That the act of Congress passed on the 13th day of February, 1801, entitled an act to provide for the more convenient organi- zation of the courts of the United States, ought to be repealed." That gentleman opened the debate on his resolution with a speech of uncommon power and massive strength, in which he sought to demonstrate the utter inexpediency of such a bill as the one in review, by referring to the decreasing number of suits in the Federal court, and from the certainty of a further decrease; and he sustained the constitutional power of Congress to repeal the act in question. He was followed by Jonathan Mason, of Massa- chusetts, in reply; and when J. Mason resumed his seat, Gov- ernor Morris rose and with consummate tact endeavored to break the force of Breckenridge's speech. When Morris ended, the Senate adjourned. On the 12th the discussion was renewed by a frank and argumentative speech from General Jackson, of Georgia, in favor of the resolution, who, with Tracy, occupied the floor for that day. On the 13th the discussion was continued by Stevens Thomson Mason, who made one of the most brilliant displays of his parliamentary career. He was present when the act passed the Senate and was familiar with all its details; and he not only upheld the inexpediency of its passage at the time, and the right and duty of Congress to repeal it, but brought the charge of unconstitutionality, if such a charge was just, home upon the authors of the act which abolished a court, set the judges adrift, then took them up and placed them in another court, much to their inconvenience and discomfort.
After dwelling for some time on this view of the subject, we can imagine the effect, the tone, and the gesture with which he rebuked his opponents as he uttered these words :
"Where, then, were these guardians of the Constitution, these vigilant sentinels of our rights and liberties, when this law passed ? Were they asleep on their post? Where was the gentleman from New York (Morris), who has on this debate made such a noble stand in favor of a violated Constitution? Where was the
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