Brutus on Mason’s Objections

Brutus

Virginia Journal

November 22, 1787

To the Printers of the Virginia Journal

and Alexandria  Advertiser.

Gentlemen, At this important crisis when we are about to determine upon a government which is not to effect us for a month, for a year, or for our lives: but which, it is probable, will extend its consequences to the remotest posterity, it behooves every friend to the rights and privileges of man, and particularly those who are interested in the prosperity and happiness of this country, to step forward and offer their sentiments upon the subject in an open, candid and independent manner. –Let the constitution proposed by the late Convention be dispassionately considered and fully canvassed. –Let no citizen of the United States of America, who is capable of discussing the important subject, retire from the field. –And, above all, let no one disseminate his objections to, or his reasons for approving of the constitution in such a manner as to gain partisans to his opinion, without giving them an opportunity of seeing how effectually his sentiments may be controverted, or how far his arguments may be invalidated. –For when a man of acknowledged abilities and great influence (and particularly one who has paid attention to the subject) hands forth his opinion, upon a matter of general concern, among those upon whom he has reason to think it will make the most favorable impression, without submitting it to the test of a public investigation, he may be truly said to take an undue advantage of his influence, and appearances would justify a supposition that he wished to effect, in a clandestine manner, that which he could not accomplish by an open and candid application to the public.

I expected, Gentlemen, that Col. Mason’s objections to the proposed constitution would have been conveyed to the public, before this time, through the channel of your, or some other paper, but as my expectations, in that respect, have not yet been gratified, I shall take the liberty to send you a copy of them for publication, which I think must be highly acceptable to a number of your customers who have not had an opportunity of seeing them in manuscript.

Objections to the Constitution of Government formed by the Convention.

“There is no declaration of rights; and the laws of the general government being paramount to the laws and constitutions of the several States, the declarations of rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefits of the common law, which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several States.

“In the House of Representatives there is not the substance, but the shadow only of representation; which can never produce proper information in the Legislature, or inspire confidence in the people; the laws will therefore be generally made by men little concerned in, and unacquainted with their effects and consequences.

“The Senate have the power of altering all money-bills, and of originating appropriations of money, and the salaries of the officers of their own appointment in conjunction with the President of the United States; although they are not the representatives of the people, or amenable to them.

“These with their other great powers (viz. their power in the appointment of ambassadors and other public officers, in making treaties, and in trying all impeachments) their influence upon and connection with the supreme executive from these cause,  their duration of office, and their being a constant existing body almost continually siting, joined with their being one complete branch of the Legislature, will destroy any balance in the government, and enable them to accomplish what usurpations they please upon the rights and liberties of the people.

“The judiciary of the United States is so constructed and extended as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious, intricate and expensive, and justice as unattainable by a great part of the community, as in England, and enabling the rich to oppress and ruin the poor.

“The President of the United States has no constitutional council (a thing unknown in any safe and regular government) he will therefore be unsupported by proper information and advice; and will be generally directed by minions and favorites-or he will become a tool to the Senate—or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a council in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office; whereas had a constitutional council been formed (as was proposed) of six members, viz. two from the eastern, two from the middle, and two from the southern States, to be appointed by vote of the States in the House of Representatives, with the Same duration in office as the Senate, the Executive would always have had safe and proper information and advice, the President of such a council might have acted as Vice-President of the United States, pro tempore, upon any vacancy or disability of the chief Magistrate; and long continued session of the Senate would in a great measure have been prevented.

“From this fatal defect of a constitutional council has arisen the improper power of the Senate, and the appointment of public officers and the alarming dependence and connection between that branch of the Legislature and the Supreme Executive.

“Hence also sprung that unnecessary and dangerous officer the Vice President; who for want of other employment is made President of the Senate; thereby dangerously blending the executive and legislative powers; besides always giving to some one of the States an unnecessary and unjust pre-eminence over the others.

“The President of the United States has the unrestrained power of granting pardons for treason; which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.

“By declaring all treaties supreme laws of the land, the Executive and the Senate have, in many cases, an exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.

“By requiring only a majority to make all commercial and navigation laws, the five southern States (whose produce and circumstances are totally different from that of the eight northern and eastern States) will be ruined; for such rigid and premature regulations may be made, as will enable the merchants of the northern and eastern States not only to demand an exorbitant freight, but to monopolize the purchase of the commodities at their own price, for many years: To the great injury of the landed interest, and impoverishment of the people: And the danger is the greater, as the gain on one side will be in proportion to the loss on the other. Whereas requiring two-thirds of the members present in both houses would have produced mutual moderation, promoted the general interest and removed an insuperable objection to the adoption of the government.

“Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper; so that the State Legislatures have no security for the powers now presumed to remain to them; or the people for their rights.

“There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil causes; nor against the danger of standing armies in time of peace.

“The State Legislatures are restrained from laying export duties on their own produce.

“The general Legislature is restrained from prohibiting the further importation of slaves for twenty odd years; though such importations render the United States weaker, and more vulnerable, and less capable of defense.

“Both the general Legislature and the State Legislature are expressly prohibited making ex post facto laws; though there never was nor can be a Legislature but must and will make such laws, when necessity and the public safety require them, which will hereafter be a breach of all the constitutions in the Union, and afford precedents for other innovations.

“This government will commence in a moderation aristocracy; it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt oppressive aristocracy; it will most probably vibrate some years between the two, and then terminate between the one and the other.”

Many of the foregoing objections and the reasoning’s upon them, appear to be calculated more to alarm the fears of the people, than to answer any good or valuable purpose.-Some of them are raised upon so slender a foundation as would render it doubtful whether they were the production of Col. Mason’s abilities, if an incontestable evidence of their being so could not be adduced.

November 19, 1787.

(a)   Col. Mason acknowledges that his objection was in some degree lessened by inserting the word thirty instead of forty, as it was at first determined, in the 3d clause of the 2d section of the 1st article.

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