George Mason On the Militia and the Constitution &c.
Gunston Hall Plantation
"You'l have seen your Instructions to propose Independance and our resolutions to form a Government. The Political Cooks are busy in preparing the dish, and as colo. Mason seems to have the Ascendancy in the great work, I have Sanguine hopes it will be framed so as to answer its end, Prosperity to the Community and Security to Individuals, but I am yet a stranger to the Plan." - Edmund Pendleton to Thomas Jefferson, May 24th, 1776.
The First Seeds of Revolution and Constitutional Law
To the Committee of Merchants in London, June 6, 1766
"America has always acknowledged her Dependence upon Great Britain. It is her Interest, it is her Inclination to depend upon Great Britain. We readily own that these Colonys were first setled, not at the Expence, but under the Protection of the English Government; which Protection it has continued to afford them; and we own too, that Protection & Allegiance are reciprocal Dutys. If it is asked at whose Expence they were setled? The Answer is obvious at the Expence of the private Adventurers our Ancestors; the Fruit of whose Toil and Danger we now enjoy.
We claim Nothing but the Liberty & Privileges of Englishmen, in the same Degree, as if we had still continued among our Brethren in Great Britain: these Rights have not been forfeited by any Act of ours, we can not be deprived of them without our Consent, but by Violence & Injustice; We have received them from our Ancestors and, with God's Leave, we will transmit them, unimpaired to our Posterity. Can those, who have hitherto acted as our Friends, endeavour now, insidiously, to draw from Us Concessions destructive to what we hold far dearer than Life!"
"We will not attempt to lay them under any Restrictions, or use any Manner of Violence: We will only cease to import any, but certain enumerated Goods, ourselves, and refuse to purchase them of others, who do import them after a limited Time....The Necessaries of Life lie within a narrow Compass, and many of these, our own Country will supply. The little Luxuries and Conveniencies of Life, we may chearfully part with, when we reflect that we are thereby securing the Liberty and Happiness of our Posterity....A Man may be as warm in a Coat that costs but Ten Shillings, as in one that cost Ten Pounds: Habit and Custom will reconcile us to many Things that are irksome at first, and soon make that reputable, which was before thought mean and scandalous. Let the principal Gentlemen but set the Example, they will be quickly followed by the Bulk of the People. What will not the Love of Liberty inspire! "
Letter to Richard Henry Lee - June 7, 1770
"The objection that this would be infringing the rights of others while we are contending for liberty ourselves is ill founded. Every member of society is in duty bound to contribute to the safety and good of the whole ; and when the subject is of such importance as the liberty and happiness of a country, every inferior consideration, as well as the inconvenience to a few individuals, must give place to it ; nor is this any hardship upon them, as themselves and their posterity are to partake of the benefits resulting from it. Objections of the same kind might be made to the most useful civil institutions."
To [George Brent?] - December 6, 1770
"We have always acknowledged, we are always ready to recognize, the sovereignty of Great Britain, but we will not submit to have our own money taken out of our pockets without our consent; because if any man or any set of men take from us without our consent or that of our representatives one shilling in the Pound we have not Security for the remaining nineteen. We owe our mother-country the duty of subjects but will not pay her the submission of slaves. "
Extracts From The Virginia Charters, With Some Remarks On Them Made In The Year 1773
"There can be no doubt but this and every clause relating to the people and inhabitants in general (not to the particular property of the Company) under the Faith of which our Ancestors left their native land, and adventured to settle an unknown country, operates and inures to the benefit of their posterity forever, notwithstanding the dissolution of the Virginia Company, had such dissolution been ever so legal. But a new doctrine has been lately broached by the writers against America. "That the charters granted to the Colonies were originally illegal, as containing powers and rights which the Crown, being only one branch of the Legislature, could not grant, and having never been confirmed by Act of Parliament, that they are of course void and of no effect." The first assertion happens to be false; and if it was true, the consequences deduced from it are erroneous. When America was discovered, the sending abroad colonies had been unknown in Europe from the times of the ancient Greeks and Romans (for the irruptions of the Goths and other barbarous nations can't be regarded in that light). To the people of Great Britain the scene then opening was entirely new; and altho' the people removing from thence, to settle Colonies in America, under the auspices and protection and for the benefit of Great Britain, would by the laws of Nature and Nations, have carried with them the Constitution of the Country they came from, and consequently been entitled to all its advantages, yet not caring to trust altogether to general principles applied to a new subject, and anxious to secure to themselves and their posterity, by every means in their power, the rights and privileges of their beloved laws and Constitution, they entered into a solemn compact with the Crown for that purpose. Under the faith of these compacts, at their own private expense and Hazard, amidst a thousand Difficulties and Dangers, our Ancestors explored and settled a New World: their posterity have enjoyed these rights and privileges from time Immemorial ; and have thereby (even if the Charters had been originally defective) acquired a legal Title. It ought to wear well; for it has been dearly earned. King, Lords, and Commons compose the British Legislature, but the Constitution has lodged the Executive power in the Crown. The Disposition of foreign or newly acquired Territory hath ever belonged to the Executive. This power has been constantly exercised by our Kings in numberless instances. At the conclusion of the last war, Martinico, Guadaloupe, &c. (tho' acquired at the National Expense), were disposed of by the Crown, and however the policy may have been censured, the King's right was never disputed. If the Crown can make an absolute and unlimited alienation to Foreigners ; a fortiori can it make a modulated Grant to Subjects. The American Charters, therefore, are legal ab origine. Equally false and absurd is the Idea of Great Britain's Right to govern these Colonies as conquered Provinces, for we are the Descendants, not of the Conquered, but of the Conquerors...
The powers by this clause vested in the members of the first Virginia Council belong properly to a Council of State. But to what an alarming and enormous Height hath the Jurisdiction of their successors increased? In whose hands are lodged the Executive, the Legislature, and the Judicative powers of the State, and consequently the Life, Liberty, and property of the subject? That this hath not yet produced much Evil or Opposition is candidly acknowledged, because the Council has generally been composed of men whose character, Interest, and Connections here, have restrained them within the bonds of Moderation. Because the Emoluments of the office are not a sufficient Temptation to Mercenary Strangers to solicit the appointment. And because Luxury, venality, and a general corruption of manners have not yet thoroughly taken root among us. But when it is considered that this Board is entirely dependant upon the Crown ; that the authority of its members is not hereditary, and if it was that it could descend but to one of their children ;that no man's Rank or Fortune, how great soever, can exempt him from the common course of human affairs; and that their own posterity must quickly be distributed among the different classes of mankind, and blended with the mass of the people, there cannot be a more striking proof of the prevalence of the lust of power in the mind of man than that these gentlemen should be tenacious of Jurisdiction as unsafe and dangerous to their own Families as to the Community. Not only mean and sordid but extremely shortsighted and foolish is that species of self-interest which in political questions opposeth itself to the publick good; for a little cool reflection must convince a wise man that he can no other way so effectually consult the permanent Interest of his own Family and posterity as by securing the just rights and privileges of that society to which they belong. But it is easier to describe a Disease in the Body politic, than to point out a proper Physician. Perhaps the lenient hand of a wise and patriotic Prince -- perhaps some noble and public spirited Governor, who would then indeed deserve a statue. Perhaps the Constitution may by degrees work itself clear by its own innate strength, the virtue and Resolution of the Community -- as hath often been the case in our Mother Country. This last is the natural Remedy; if not counteracted by that slow poison, which is daily contaminating the minds and morals of our people. Every Gentleman here is a petty tyrant. Practised in Arts of Despotism and Cruelty, we become callous to the Dictates of humanity and all the finer feelings of the Soul. Taught to regard a part of our species in the most abject and contemptible Degree below us; we lose that idea of the dignity of Man, which the Hand of Providence has implanted in us for great and wise purposes. Habituated from our infancy to trample upon the rights of human nature, every generous, every liberal sentiment, if not extinguished, is enfeebled in our minds. And in such an infernal school are to be educated our future Legislators and Rulers. The laws of Impartial Providence may even by such means as these, avenge upon our posterity the injury done a set of wretches whom our injustice hath debased almost to a level with the Brute Creation. These Remarks may be thought foreign to the design of the annexed Extracts. They were extorted by a kind of irresistible perhaps an enthusiastic Impulse, and the Author of them, conscious of his own good intentions, cares not whom they please or offend..."
As some amendments in our judicial proceedings have lately been proposed, it may not be amiss to mark here a Capital Error in the Constitution of our Supreme Courts. When any man thinks himself injured by a Court of Law, or a Decree of Chancery, the British Constitution hath given him an appeal; this is an inherent right in the subject, of which he can't be deprived, without being robbed of a valuable part of his Birth-Right, and the most effectual means that human wisdom could devise to secure the property of individuals. A court of Appeals, therefore, or that Court which is the Dernier Resort, should be so constituted as that no suit could originate there, for otherwise, when the subject is aggrieved, he is left without redress. This useful distinction seems hitherto to have been totally neglected in this Colony.
Letter to Martin Cockburn - May 26, 1774
"I arrived here on Sunday morning last, but found every body's attention so entirely engrossed by the Boston affair, that I have as yet done nothing respecting my charter-rights and, I am afraid, shall not this week.
A dissolution of the House of Burgesses is generally expected; but I think will not happen before the House has gone through the public business, which will be late in June.
Whatever resolves or measures are intended for the preservation of our rights and liberties, will be reserved for the conclusion of the session. Matters of that sort here are conducted and prepared with a great deal of privacy, and by very few members; of whom Patrick Henry is the principal."
Fairfax County Resolves - July 18, 1774
"RESOLVED that the most important and valuable Part of the British Constitution, upon which it's very Existence depends, is the fundamental Principle of the People's being governed by no Laws, to which they have not given their Consent, by Representatives freely chosen by themselves; who are affected by the Laws they enact equally with their Constituents; to whom they are accountable, and whose Burthens they share; in which consists the Safety and Happiness of the Community: for if this Part of the Constitution was taken away, or materially altered, the Government must degenerate either into an absolute and despotic Monarchy, or a tyrannical Aristocracy, and the Freedom of the People be annihilated"
First Draft of the Virginia Declaration of Rights by George Mason, June 1776. James Madison's Copy. Page 1, Page 2, Page 3.
George Mason's Letter To Thomas Jefferson, September 27, 1781.
This power, directly contrary to the Articles of Confederation, is assumed upon the Doctrine now industriously propagated "that the late Revolution has transferred the Sovereignty formerly possessed by Great Britain, to the United States, that is to the American Congress" A Doctrine which, if not immediately arrested in it's progress, will be productive of every Evil; and the Revolution, instead of securing, as was intended, our Rights & Libertys, will only change the Name & place of Residence of our Tyrants...I think that they will prove that Congress are now abrogating to themselves an unwarrantable and dangerous power; which is in its nature Subversive of American Liberty; for if they can stride over the lines of Confederation and assume Rights not delegated to them by the Legislatures of the different States, in one instance, they can in every other that the lust of power may suggest.
"That altho' the thirteenth Article of the Bill of Rights expressly declares "that in all Cases, the Military shou'd be under strict Subordination to, and governed by the Civil Power" Yet Horses & other Effects have been frequently taken from the Inhabitants by Military-Officers, and Soldiers, without authority from, or application to the Civil Magistrate, and without Appraisement; by which many poor Familys have been ruined."
Protest From the Fairfax County Justices of the Peace, 1785.
"Because it is conceived that the Exercise of such a power is altogether illegal, giving to the Executive department of the State an undue & dangerous Influence over the Courts of Justice, directly contrary to the Declaration of Rights and to the fundamental Principles of our free Government.
And altho' this Court hath no cause to believe that the present Commission was issued for any such evil Purposes; Yet we shou'd think we were deficient in the duty we owe to our Country, and to Posterity, if we suffered ourselves to become accessary to establishing a precedent evidently tending to introduce them, and by renewing the oppressive Maxims and Practices of the Government, from which we have so lately been rescued by force of Arms, to sap the foundations of that Liberty, which has been purchased at the expence of so much Blood & Treasure."
George Mason to Thomas Jefferson on Not Signing the U.S. Constitution and its Defects- 26 May 1788
"I make no Doubt that you have long ago received Copys of the new Constitution of Government, framed last Summer by the Delegates of the several States, in general Convention, at Philadelphia. Upon the most mature Consideration I was capable of, and from Motives of sincere Patriotism, I was under the Necessity of refusing my Signature, as one of the Virginia Delegates; and drew up some general Objections; which I intended to offer, by Way of Protest; but was discouraged from doing so, by the precipitate, & intemperate, not to say indecent Manner, in which the Business was conducted, during the last Week of the Convention, after the Patrons of this new plan found they had a decided Majority in their Favour, which was obtained by a Compromise between the Eastern, and the two Southern States, to permit the latter to continue the Importation of Slaves for twenty odd Years; a more favourite Object with them than the Liberty and Happiness of the People...There are many other things very objectionable in the proposed new Constitution; particularly the almost unlimited Authority over the Militia of the several States; whereby, under Colour of regulating, they may disarm, or render useless the Militia, the more easily to govern by a standing Army; or they may harrass the Militia, by such rigid Regulations, and intollerable Burdens, as to make the People themselves desire it's Abolition...I shall set out for Richmond this Week, in order to attend it. From the best Information I have had, the Members of the Virginia Convention are so equally divided upon the Subject, that no Man can, at present, form any certain Judgement of the Issue. There seems to be a great Majority for Amendments; but many are for ratifying first, and amending afterwards. This Idea appears to me so utterly absurd, that I can not think any Man of Sense candid, in Proposing it."
Resolutions Drafted by Mason for the Virginia Ratifying Convention- 8 June 1788
"That there shall be a Declaration of Rights, asserting and securing from Encroachment the essential and unalienable Rights of the People, in some such Manner as the following.
Here the Declaration of Rights to be inserted."
"17. That the People have a Right to keep & to bear Arms; 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 Armys in time of Peace are dangerous to Liberty, and therefore ought to be avoided, as far as the Circumstances and Protection of the Community will admit; and that in all Cases, the Military shou'd be under strict Subordination to and govern'd by the Civil Power."
Taxing Power of Congress May Annihilate the States: June 4, 1788.
"Whether the constitution be good or bad, the present clause clearly discovers, that it is a national government, and no longer a confederation...
Does any man suppose, that one general national government can exist in so extensive a country as this? I hope that a government may be framed which may suit us, by drawing the line between the general and state governments, and prevent that dangerous clashing of interest and power, which must, as it now stands, terminate in the destruction of one or the other. When we come to the judiciary, we shall be more convinced, that this government will terminate in the annihilation of the state governments: the question then will be, whether a consolidated government can preserve the freedom, and secure the great rights of the people.
If such amendments be introduced as shall exclude danger, I shall most gladly put my hand to it. When such amendments, as shall, from the best information, secure the great essential rights of the people, shall be agreed to by gentlemen, I shall most heartily make the greatest concessions, and concur in any reasonable measure to obtain the desirable end of conciliation and unanimity... I therefore beg gentlemen seriously to consider it. Should this power be restrained, I shall withdraw my objections to this part of the constitution: but as it stands, it is an objection so strong in my mind, that its amendment is with me, a sine qua non, of its adoption. I wish for such amendments and such only, as are necessary to secure the dearest rights of the people."
An Amendment to the Constitution is Needed to Prevent the Danger of a Standing Army- 14 June 1788
"No man has a greater regard for the military gentlemen than I have. I admire their intrepidity, perseverance, and valour. But when once a standing army is established, in any country, the people lose their liberty. When against a regular and disciplined army, yeomanry are the only defence—yeomanry, unskillful & unarmed, what chance is there for preserving freedom? Give me leave to recur to the page of history, to warn you of your present danger. Recollect the history of most nations of the world. What havock, desolation, and destruction, have been perpetrated by standing armies? An instance within the memory of some of this house, -will shew us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great-Britain, the British parliament was advised by an artful man, [Sir William Keith] who was governor of Pennsylvania, to disarm the people. That it was the best and most effectual way to enslave them. But that they should not do it openly; but to weaken them and let them sink gradually, by totally disusing and neglecting the militia. [Here MR. MASON quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought at the same time to have some such power. But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use....
... I consider and fear the natural propensity of rulers to oppress the people. I wish only to prevent them from doing evil. By these amendments, I would give necessary powers, but no unnecessary power. If the clause stands as it is now, it will take from the state legislatures what divine providence has given to every individual—the means of self defence."
Control over the Militia Is But One of Many Dangerous Powers Conferred on Congress- 14 June 1788
"MR. GEORGE MASON, after having read the clause which gives congress power to provide for arming, organizing, and disciplining the militia, and governing those in the actual service of the union— declared it as his firm belief, that it included the power of annexing punishments, and establishing necessary discipline; more especially as the construction of this, and every other part of the constitution, was left to those who were to govern. If so, he asked, if congress could not inflict the most ignominious punishments on the most worthy citizens of the community? Would freemen submit to such indignant treatment? It might be thought a strained construction, but it was no more than congress might put upon it. He thought such severities might be exercised on the militia, as would make them wish the use of militia to be utterly abolished; and assent to the establishment of a standing army."
Militia Duty May Become Onerous Unless the Power of Congress is Amended - 16 June 1788
"Mr. Chairman—A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty."
Congress May Attempt to Make Militia Service Intolerable - 16 June 1788
"But that congress could inflict severe and ignominious punishments on the militia, as a necessary incident to the power of organizing and disciplining them. The gentleman had said there was no danger, because the laws respecting the militia were less rigid in the other states than this. This was no conclusive argument. His fears, as he had before expressed, were, that grievous punishments would be inflicted in order to render the service disagreeable to the militia themselves, and induce them to wish its abolition, which would afford a pretence for establishing a standing army. He was convinced the state governments ought to have the controul of the militia, except when they were absolutely necessary for general purposes. "
The "Necessary and Proper" Clause Could Become an Engine for Oppression - 16 June 1788
"The government of Virginia, he remarked, was drawn from the people; yet there were certain great and important rights, which the people by their bill of rights declared to be paramount to the power of the legislature. He asked, why should it not be so in this constitution? Was it because we were more substantially represented in it, than in the state government? If in the state government, where the people were substantially and fully represented, it was necessary that the great rights of human nature should be secure from the encroachments of the legislature; he asked, if it was not more necessary in this government, where they were but inadequately represented? He declared, that artful sophistry and evasions could not satisfy him. He could see no clear distinction between rights relinquished by a positive grant, and lost by implication. Unless there were a bill of rights, implication might swallow up all our rights."
The Proposed Federal District Might Become a Sanctuary for Criminals
"This ten miles square, says MR. MASON, may set at defiance the laws of the surrounding states, and may, like the custom of the superstitious days of our ancestors, become the sanctuary of the blackest crimes. Here the federal courts are to sit. We have heard a good deal said of justice. It has been doubted whether jury trial be secured in civil cases. But I will suppose, that we shall have juries in civil cases. What sort of a jury shall we have within the ten miles square? The immediate creatures of the government. What chance will poor men get, where congress have power of legislating in all cases whatever, and where judges and juries may be under their influence, and bound to support their operations? Even with juries the chance of justice may here be very small, as congress have unlimited authority, legislative, executive, and judicial. Lest this power should not be sufficient, they have it in every case. Now, sir, if an attempt should be made to establish tyranny over the people, here are ten miles square, where the greatest offender may meet protection. If any of their officers, or creatures, should attempt to oppress the people, or should actually perpetrate the blackest deed, he has nothing to do, but get into the ten miles square. Why was this dangerous power given? Felons may receive an asylum there, and in their strong holds. "
