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of his debtors. Next year an act was made restoring them to the executor of the proprietor. Subsequent to this, the treaty of peace was made, by which it was agreed that there should be no further confiscations. But, after this, an act of Assembly passed, confiscating his whole property. As Lord Fairfax's title was indisputably good, and as treaties are to be the supreme law of the land, will not his representatives be able to recover all in the federal court ? How will gentlemen like to pay an additional tax on lands in the Northern Neck ? This the operation of this system will compel them to do. They now are subject to the same tax that other citizens are ; and if the quitrents be recovered in the federal court, they are doubly taxed. This may be called an assertion ; but, were I going to my grave, I would appeal to Heaven that I think it true. How will a poor man, who is injured or dispossessed unjustly, get a remedy? Is he to go to the federal court, seven or eight hundred miles? He might as well give his claim up. He may grumble, but, finding no relief, he will be contented.
Again, all that tract of country between the Blue ridge and the Alleghany Mountains will be claimed, and probably recovered in the federal court, from the present possessors, by those companies who have a title to them. These lands have been sold to a great number of people. Many settled on them, on terms which were advertised. How will this be with respect to ex post facto laws ? We have not only confirmed the title of those who made the contract, but those who did not, by a law, in 1779, on their paying the original price. Much was paid in a depreciated value, and much was not paid at all. Again, the great Indiana purchase, which was made to the westward, will, by this judicial power, be rendered a cause of dispute. The possessors may be ejected from those lands. That company paid a consideration of ten thousand pounds to the crown, before the lands were taken up. I have heard gentlemen of the law say (and I believe it is right) that, after the consideration was paid to the crown, the purchase was legally made, and ought to be valid. That company may come in, and show that they have paid the money, and have a full right to the land. Of the Indiana company I need not say much. It is well known that their claims will be brought before these courts. Three or four counties are settled on the land to which that com.
pany claims a title, and have long enjoyed it peaceably. All these claims before those courts, if they succeed, will introduce a scene of distress and confusion never heard of before. Our peasants will be, like those mentioned by Virgil, reduced to ruin and misery, driven from their farms, and obliged to leave their country :-“Nos patriam fugimus—et dulcia linquimus arva.”
Having mentioned these things, give me leave to submit an amendment, which I think would be proper and safe, and would render our citizens secure in their possessions justly held. I mean, sir, “ that the judicial power shall extend to no case where the cause of action shall have originated before the ratification of this Constitution, except in suits for debts due to the United States, disputes between States about their territory, and disputes between persons claiming lands under the grants of different States.” In these cases, there is an obvious necessity for giving it a retrospective power. I have laid before you my idea on the subject, and expressed my fears, which I most conscientiously believe to be well founded.
Friday, June 20.-[The ist and ad sections of Article III. still under consideration.]
Mr. George Mason. Mr. Chairman, the objection I made, respecting the assignment of a bond from a citizen of this State to a citizen of another State, remains still in force. The honorable gentleman [E. Pendleton) has said that there can be no danger, in the first instance, because it is not within the original jurisdiction of the Supreme Court ; but that the suit must be brought in the inferior federal court of Virginia. He supposes there can never be an appeal in this case, by the plaintiff, because he gets a judgment on his bond ; and that the defendant alone can appeal, who therefore, instead of being injured, obtains a privilege. Permit me to examine the force of this. By means of a suit, on a real or fictitious claim, the citizens of the most distant States may be brought to the supreme federal court. Suppose a man has my bond for a hundred pounds, and a great part of it has been paid, and, in order fraudulently to oppress me he assigns it to a gentleman in Carolina or Maryland. He then carries me to the inferior federal court. I produce my witness, and judgment is given in favor of the defendant. The plaintiff appeals, and carries me to the superior court, a thousand miles, and my expenses amount to more than the bond. The honorable gentleman recommends to me to alter my proposed amendment. I would as soon take the advice of that gentleman as any other ; but, though the regard which I have for him be great, I cannot assent on this great occasion.
There are not many instances of decisions by juries in the admiralty or chancery ; because the facts are generally proved by depositions. When that is done, the fact, being ascertained, goes up to the superior court, as part of the record; so that there will be no occasion to revise that part.
Monday, June 23.—[The 1st and 2d sections of Article III. still under consideration. The speeches of this day incompletely reported.]
Mr. George Mason. Mr. Chairman, I should not have troubled the committee again on this subject, were there not some arguments in support of that plan, sir, that appear to me totally unsatisfactory. With respect to concurrent jurisdiction, sir, the honorable gentleman [Mr. Madison] has observed, that county courts had exercised this right without complaint. Have Hanover and Henrico the same objects? Can an officer in either of those counties serve a process in the other? The federal judiciary has concurrent jurisdiction throughout the States, and therefore must interfere with the State judiciaries. Congress can pass a law constituting the powers of the federal judiciary throughout the States : they may also pass a law vesting the federal power in the State judiciaries, These laws are permanent, and cannot be controverted by any law of the State.
If we were forming a general government, and not States, I think we should perfectly comply with the genius of the paper before you ; but if we mean to form one great national govern. ment for thirteen States, the arguments which I have heard hitherto in support of this part of the plan do not apply at all. We are willing to give up all powers which are necessary to preserve the peace of the Union, so far as respects foreign nations, or our own preservation ; but we will not agree to a federal judiciary, which is not necessary for this purpose, because the powers there granted will tend to oppress the middling and lower class of people. A poor man seized by the federal officers, and carried to the federal court,-has he any chance under such a system as this?
Justice itself may be bought too dear ; yet this may be the case. It may cost a man five hundred pounds to recover one hundred pounds. These circumstances are too sacred to leave undefined ; and I wish to see things certain, positive, and clear. But, however, sir, these matters have been so fully investigated, that I beg pardon for having intruded so far, and I hope we shall go on in the business.
[The ist section of Article IV. was then read.]
Mr. George Mason. Mr. Chairman : the latter part of this clause, sir, I confess I do not understand-Full faith and credit shall be given to all acts; and how far it may
proper that Congress shall declare the effects, I cannot clearly see into.
[2d section, Article IV.]
Mr. George Mason. Mr. Chairman, on some former part of the investigation of this subject, gentlemen were pleased to make some observations on the security of property coming within this section. It was then said, and I now say, that there is no security ; nor have gentlemen convinced me of this.
(3d section, Article IV., was then read.]
Mr. George Mason took a retrospective view of several parts which had been before objected to. He endeavored to demonstrate the dangers that must inevitably arise from the insecurity of our rights and privileges, as they depended on vague, indefinite, and ambiguous implications. The adoption of a system so replete with defects, he appehended, could not but be productive of the most alarming consequences. He dreaded popular resistance to its operation. He expressed, in emphatic terms, the dreadful effects which must ensue, should the people resist ; and concluded by observing, that he trusted gentlemen would pause before they would decide a question which involved such awful consequences.
Tuesday, June 24.-[In answer to E. Randolph.]
Mr. George Mason. Mr. Chairman, with respect to commerce and navigation, he has given it as his opinion that their regulation, as it now stands, was a sine qua non of the Union, and that without it the States in Convention would never concur. I differ from him. It never was, nor in my opinion ever will be, a sine qua non of the Union.
I will give you, to the best of my recollection, the history of that affair. This business was discussed at Philadelphia for
four months, during which time the subject of commerce and navigation was often under consideration ; and I assert that eight States out of twelve, for more than three months, voted for requiring two thirds of the members present in each house to pass commercial and navigation laws. True it is, that afterwards it was carried by a majority as it stands. If I am right, there was a great majority for requiring two thirds of the States in this business, till a compromise took place between the Northern and Southern States; the Northern States agreeing to the temporary importation of slaves, and the Southern States conceding, in return, that navigation and commercial laws should be on the footing on which they now stand. If I am mistaken, let me be put right. Those are my reasons for saying that this was not a sine qua non of their concurrence. The Newfoundland fisheries will require that kind of security which we are now in want of. The Eastern States therefore agreed, at length, that treaties should require the consent of two thirds of the members present in the Senate.
AMENDMENTS TO THE CONSTITUTION.
The bill of rights here given is from the original manuscript in the handwriting of George Mason. The amendments, twelve in number, seem to be also penned by him. The other set of amendments, numbering nineteen, would seem to be in a clerk's hand. The latter is the completed draft, evidently used at a later stage in the work of the committee of opposition, and the first article or section has been altered in committee.
FORMS OF A RESOLVE TO ACCOMPANY THE DECLARATION OF
RIGHTS AND AMENDMENTS,
Resolved, that the following Declaration of Rights and Amendments be referred to the committee of the whole Convention upon the new constitution of government recommended by the late federal convention ;