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States. I conceive he ought to be chosen from the two highest on the list. This would be simple and easy. Then indeed the people would have some agency in the election. But when it is extended to the five highest, a person having a very small number of votes may be elected.”

And in regard to the second section of the article on the Executive, George Mason said:

" It has been wittily observed that the Constitution has married the President and the Senate-has made them man and wife. I believe the consequence that generally results from marriage will happen here. They will be continually supporting and aiding each other; they will always consider their interest as united.

The executive and legislative powers thus connected will destroy all balances; this would have been prevented by a constitutional council, to aid the President in the discharge of his office, vesting the Senate, at the same time, with the power of impeaching them.”

Madison in his reply took issue with Mason on the construction of the phrase, “majority of the whole number of electors appointed.” However, the present mode of electing the Executive, by special conventions, the electoral college simply registering the result of the vote on the nominees of the conventions, is a wide departure in practice from the theory contemplated by the Constitution.

George Mason was the first to speak after the reading of the first clause of the second section of article second. He was alarmed at the great powers given the President. That of commanding the army in person he thought very danger

He believed a general superintendence was sufficient, and he took occasion to remark on the virtues and magnanimity of Washington, who, had he been ambitious, might have done much harm to the country: "So disinterested and amiable à character as General Washington might never command again.” He thought the President should not have the pardoning power. General Lee said the President would not necessarily command in person and might only do so in case he was a military man and the public safety required it. To this Mason retorted, that the President might command if he pleased, and might make a dangerous use of his power. George Nicholas compared the State and federal governments, in the power of the former over the militia and the latter over the army and navy, and George Mason replied that “the Governor did not possess such extensive powers as the President, and had no influence over the navy. The liberty of the people had been destroyed by those who were military commanders only. The danger here was greater by the junction of great civil powers to the command of the army and fleet." Madison animadverted upon Mason's objection to giving the Executive the pardoning power, and said that it would not be proper to vest it in the House of Representatives, because large popular bodies were more apt to be swayed by passion. He instanced the case of Massachusetts and Shay's Rebellion, where the same legislature at different sessions were actuated by exactly opposite sentiments. To this Colonel Mason answered that “they (the Assemblies] were both right; for in the first instance, when such ideas of severity prevailed, a rebellion was in existence, in such circumstance it was right to be rigid. But after it was over, it would be wrong to exercise unnecessary severity." The second clause was read, and George Mason was again on his feet, objecting to this most dangerous provision, thereby five States might make a treaty, ten Senators, the representatives of five States—being two-thirds of a quorum. These ten might come from the five smallest States.” George Nicholas answered Colonel Mason, but the latter was not prepared to agree with him in his argument as to the superiority of the Constitution over the Confederation on this point. The subject was discussed for some time longer, both Henry and Grayson, among others, making speeches on this question of the treaty power. On Thursday, the 19th, after Grayson and Nicholas had spoken, George Mason continued his remarks on the same topic. He considered this as the greatest acts of sovereignty,” and thought it should be



one of Appendix iii. ? “ History of the Virginia Federal Convention," p. 274.



most carefully guarded. As it was, the President had more power than the King of England. “Could the King give Portsmouth to France? He could not do this without an express act of Parliament—without the consent of the legislature in all its branches. There are other things which the King cannot do, which may be done by the President and Senate in this case." The common law of England, he said, was not the common law of this country. And there was nothing in the Constitution to prevent the relinquishment of territory by treaty. “No treaty to dismember the empire, ought to be made without the consent of three-fourths of the legislature in all its branches.” And only unavoidable necessity could excuse such a treaty when it would doubtless have the “general and uniform vote of the Continental Parliament." Corbin, Henry, and Madison all spoke on this occasion; the former exhibiting, as Grigsby says, great perspicacity in anticipating the real action of the Federal Government," in regard to treaties.'

vol. ii-17




The Convention had now reached, Thursday the 19th of June, a most important part of the Constitution—the first and second sections of the third article, on the federal judiciary. It was a theme, says the historian of the Convention, “ which, in itself considered, possessed an importance in the eyes of our fathers that language would vainly attempt to measure, which was discussed with a fulness of learning, with a keenness of logic, and with a glow of eloquence that it might well elicit, and which, though technical, and seen through a vista of seventy [now a hundred] years, cannot fail to strike a responsive chord in the hearts of every true son and daughter of our noble Commonwealth." possessed an additional interest as it was to be “the last battle-ground of the parties into which the Convention was in nearly equal portions divided."! Grigsby reminds us that the experience of a century “will place a child apparently on the same level with a giant, and the merest tyro in politics with a Somers or a Mason," and he adds “ that the fears and gloomy predictions uttered by the opponents of the Constitution have, by the vigilance and caution which they inspired, operated in a material degree in preventing their own fulfilment." Edmund Pendleton having first spoken, in favor of the proposed system, Colonel Mason said he had hoped the friends of the Constitution Grigsby's “ History of the Virginia Federal Convention," p. 276.




would have had the candor to point out the objections that must be apparent to all. “It is with great reluctance," he added, " I speak of this department, as it lies out of my line. I should not tell my sentiments upon it, did I not conceive it to be so constructed as to destroy the dearest rights of the community.” He asked what power remained to the State courts. He could see no limitation to the power of the federal courts, and Congress might establish any number of them; while the discrimination between their jurisdiction and that of the State courts existed only in name.

As to my

"To what disgraceful and dangerous length does the principle of this go! For if your State judiciaries are not to be trusted with the administration of common justice, and decision of disputes respecting property between man and man, much less ought the State governments to be trusted with power of legislation. The principle itself goes to the destruction of the legislation of the States, whether or not it was intended. own opinion, I most religiously and conscientiously believe that it was intended, though I am not absolutely certain. But I think it will destroy the State governments, whatever may have been the intention. There are many gentlemen in the United States who think it right, that we should have one great, national, consolidated government, and that it was better to bring it about slowly and imperceptibly rather than all at once. This is no reflection on any man, for I mean none. To those who think that one national, consolidated government is best for America, this extensive, judicial authority will be agreeable ; but I hope there are many in this Convention of a different opinion, and who see their political happiness resting on their State governments."

Though George Mason had said he meant no reflection on any man, there was one member of the Convention who could not but consider his remarks as personal. Madison alone of those present who had been delegates to the Federal Convention felt a responsibility for its work. Randolph had changed sides, and George Wythe, though voting with the Federalists on that occasion, had taken no conspicuous

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