Although the mastermind of liberty, when it came to the Constitution, George Mason just said no.
“Let us never lose sight of this fundamental maxim —that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour.” Thus spoke Virginian George Mason of his guiding principles on the eve of revolution, a truth that ultimately would drive him to refuse to sign the Constitution and in the process fall from grace among many of the nation’s founders. Although vindication would come through the first 10 amendments to the Constitution, withholding his signature from that historic document cost Mason more than his friendship with his neighbor George Washington—it also dimmed his standing within the consensus version of American history that places the Constitution and its signers on all but hallowed ground. That, of course, may not have greatly troubled Mason, whose “indifference for distinction,” as fellow Virginian Edmund Randolph once wrote, was well known. Mason himself once said somewhat grandly that he “would not forfeit the approbation of my own mind for the approbation of any man, or all the men upon earth.”
George Mason was commonly at pains to avoid political gatherings. Early in his public life, in 1760, he declined reelection to Virginia’s House of Burgesses. In 1790, near the end of his life, he refused appointment to the U.S. Senate. In between, Mason rarely stirred from Gunston Hall, his estate just six miles south of George Washington’s far better known Mount Vernon. Indeed, only once did Mason journey outside his native state—that was in May 1787, when he traveled to Philadelphia to help draft the Constitution of the United States.
Mason’s credentials for that task were of the first order. In 1776 he was chief author both of the Virginia Declaration of Rights—the archetype for written bills of citizens’ rights—and of that state’s constitution—the first written constitution in modern history. His personal influence was considerable: He was political mentor to the younger Washington, whom he befriended when the latter was a teenager, and of James Madison, who wrote that Mason had “the greatest talents for debate of any man” he knew.
At the Philadelphia convention, Mason spoke often—indeed, his 136 recorded speeches were the fifth most of anyone attending. His was a key voice for popular government, for a restrained executive and for the hard-won compromise that resolved the conflict between the larger and smaller states. Mason’s most consequential act, however, came when the Constitution’s drafting was complete. Ignoring Benjamin Franklin’s impassioned plea to the convention for unanimity, Mason refused to sign the document.
Mason’s refusal to sign the new Constitution was grounded chiefly in what it lacked: a bill of rights such as he had drafted for Virginia. And his refusal set in motion the events that shortly before his death led to the adoption of the first 10 amendments, so inextricably linked with the Constitution that they are commonly viewed as a part of the nation’s founding covenant.
George Mason was the essential Virginian of the Revolutionary era. He was, first, an exceedingly rich man. Unlike Washington, he did not marry money; unlike Jefferson, he did not squander it. He inherited land, and expanded his holdings to 5,000 acres at Gunston, and eventually 75,000 more elsewhere.With wealth, he believed, came responsibility. Mason served as a town trustee of Alexandria,Va., and as a vestryman of the local Anglican church—the small tasks of governance by which colonists learned the craft of democracy.
Mason’s life mirrors the stirrings of Colonial resistance to British authority. When tension over Britain’s right to tax the Colonies first arose in 1765, Mason wrote to a relative in England, “There are not five men of sense in America who would accept of independence if it was offered.” Still, he drew a line:“We will not submit to have our money taken from out of our pockets without our consent….We owe our Mother Country the duty of subjects; we will not pay her the submission of slaves.”
As tensions mounted, Mason in 1774 wrote the Fairfax Resolves, which asserted Colonial rights and urged a boycott of British goods until those rights were recognized. Mason’s tones were hardly those of a supplicant. He began:“Virginia can not be considered as a conquered Country; and if it was, that the present Inhabitants are the Descendants not of the Conquered, but of the Conquerors.” Virginians owed England nothing but allegiance, as the colony “was not settled at the national Expense of England, but at the private Expense of the Adventurers, our Ancestors,” who carried with them to America all legal rights.
George Washington presented the Resolves to the Colonial legislature in Williamsburg. Mason remained at Gunston Hall. He avoided political gatherings in part because, with the tragic early death of his wife, he was sole parent to nine children. He did so, as well, because he suffered recurring gout, which made the bumpy carriage travel quite painful. But, most, he avoided such events because of his low opinion of those who gathered at them.
In 1776, appointed to the committee that was to frame Virginia’s new government, Mason wrote to Richard Henry Lee that the committee “is, according to custom, overcharged with useless members.” He anticipated that “a thousand ridiculous and impractical proposals” would come forth. Still, if Mason were to be present, then he was going to take charge. Taking the lead, Mason produced the Virginia Declaration of Rights and the state’s first constitution. Virginian Edmund Randolph noted that while many ideas had been put forward, the plan “proposed by George Mason swallowed up all the rest.”
Mason’s statement of rights formed the basis for those soon adopted by Pennsylvania, Maryland, North Carolina and Delaware and affirmed that all power derives from the people. It guaranteed trial by jury, carried the first-ever protections for a free press and affirmed religious toleration, among other concepts that are familiar to modern ears.
Mason’s Declaration itself opens with familiar words, as they were soon felicitously rephrased by his fellow Virginian,Thomas Jefferson: “That all Men are born equally free and independent, and have certain inherent natural Rights, of which they can not by any Compact, deprive or divest their Posterity; among which are the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety.”
Independence secured, Mason served with the state’s wartime government; later, he took part briefly and unhappily in the new legislature. More generally, he withdrew to Gunston Hall, cultivated his cherry trees and collected his thoughts. In 1785, when Mason was chosen to represent Virginia at a convention in Annapolis, Md., to consider questions of trade between the new states, he declined to attend. However, when that convention called for a national gathering to rethink government more generally, Mason agreed to serve.
At age 62, Mason departed for Philadelphia in May 1787 well aware of the gravity of the undertaking. Mason wrote his son, “The expectations and hopes of all the Union center on this Convention.” He did not think it would be easy to craft a national government of needed power without that power encroaching on the individual states. Success, he wrote, would require coolness, liberality and candor—traits, he added with characteristic asperity, that were “very rare commodities, by the bye.”
Today, the Articles of Confederation that the convention was called to revise are viewed as having been wholly inadequate. At the time, however, they did not bear so sharp a judgment. As Jefferson wrote,“With all the imperfections of our present government, it is without comparison the best existing or that ever existed.” Still, government revenues were uncertain at best; the veto power each state wielded made concerted action difficult.
The U.S. Constitution is now among the world’s oldest governing documents. The gathering of statesmen at Philadelphia offers an arresting scene: the austere, validating presence of George Washington in the chair; the aging Benjamin Franklin carried to and fro between sessions; the immensely wealthy Gouverneur Morris, punctuating his sentences with thumps of his wooden leg. But whatever the view from the present, at the time, the convention addressed concerns then pressing: how to reconcile conflicting political philosophies, central authority with states rights, large states with small and competing economic interests.
Mason was the last of the Virginia delegation to arrive,reaching Philadelphia on May 17. Meanwhile, James Madison politicked for what came to be called the Virginia Plan, which served as a framework for discussion. While Jefferson may have been willing to praise the Articles, Madison intended to bury them. Madison’s plan called for legislative, executive and judicial branches. The public would elect the lower house, based on proportional representation, which would itself elect an upper house. These, in turn, would choose the president and the federal judiciary.
It was a plan for a republic, though hardly a full democracy; the public’s only direct political role was to vote for the lower house. Even this was too democratic for many. Eldridge Gerry of Massachusetts, Roger Sherman of Connecticut and others urged that representatives be selected by state legislatures. The people were not trustworthy; as Gerry put it, they “do not want virtue, but are the dupes of pretended patriots.”
Notably, during deliberations, all voting was done by state; no individual votes were recorded. The influence of an individual delegate, including George Mason, can be discerned from the judgment of historians who wrote of the event.
With Gerry and others arguing for greater aristocracy, the case for the public was made, in the words of historian Charles Mee, by that “patrician country gentleman,” George Mason. A government selected by a broad base, Mason said, would heed “the rights of every class of people.” Mason appealed to the self-interest of the largely affluent assembly. He had “often wondered at” the apparent indifference of the wealthy to the rights of the common; whatever one’s current position, he noted, time and chance would “distribute their posterity throughout the lowest classes of society.”The only way to protect the rights of one’s descendants was to protect the rights of all. Mason, not Gerry, spoke to the gathering’s strongest sentiment; Madison put forth the question, and direct election of the lower house was approved.
The question that would most divide the convention was how to reconcile the interests of large and small states. Virginia had 16 times the population of Delaware. A plan that gave Virginia 16 times the representation in a lower house, which would in turn choose the upper house and chief executive, would reduce Delaware to irrelevance. A second question attached itself: With proportional representation, how were slaves to be counted? One proposal was to count all free citizens and three-fifths of “all other persons,” a euphemism for slaves.
Here, Mason’s position was striking. He was one of the largest slaveholders in Virginia—indeed, Gunston Hall, in the arresting but accurate phrase of historian Roger Wilkins, was a “private penal colony.” And the “three-fifths rule” would increase the political strength of Southern states such as Mason’s Virginia. Nonetheless, Mason wanted no sanction of slavery in the Constitution. The institution of slavery, he later told delegates, “brings the judgment of Heaven upon a country. As nations can not be rewarded or punished in the next world, they must be in this.” If the convention adopted the three-fifths rule, he threatened, he would quit Philadelphia.The rule was adopted. Mason remained, however.
The three-fifths rule helped ensure Southern support for Madison’s plan when it was countered by a rival “New Jersey Plan”—backed largely by those who sought to amend the existing Articles, not junk them. One such delegate questioned the convention’s authority to replace the Articles. Mason—never in doubt of his own authority—replied that in crisis public men must rise to their responsibilities. On June 19, Madison’s plan was approved by a 7-3 vote.
While Madison’s framework was endorsed, the question of how to apportion power between large and small states remained. Deadlock ensued.Washington wrote,“I almost despair of seeing a favorable issue to the proceedings of our Convention.” Mason agreed. Resolution of the question “is at present very doubtful,” he wrote.Of this moment,Gouverneur Morris later commented, “The fate of America was suspended by a hair.”
Mason served on the committee that was established to break the impasse. He backed the proposal worded by Benjamin Franklin that called for equal state representation in the upper house. Madison was strongly opposed. A union of only the larger states, he argued, would in time draw in the lesser; their opposition could be safely ignored. Mason wanted the issue resolved then and there. It was, he told the assembly, at least as inconvenient for him to remain in Philadelphia as for any one present; however, he “would bury his bones in this city rather than expose his country to the consequences of a dissolution of the Convention without anything being done.” Put to a vote on July 16, Franklin’s proposal passed by the narrowest of margins, 5-4, with the remaining states split or absent.
With adoption of this “Great Compromise,” delegates moved to other matters. Mason advocated strongly on four points, losing, as it happens, as often as he won.
One matter, addressed late in the convention, was an issue little remembered today: On what standing should new states be admitted? As proposed, the existing Congress would decide how many representatives would be given to each new state, 10 of which might be created in the West. Morris, for one, feared their rise. The Constitution should fix predominance on the settled East, whose “busy haunts of men” were “the proper school of political talents,” he said.The rude West was unfit “to furnish men equally enlightened,” Morris continued.
Mason now argued equality for the states. If Congress determined representation, then the natural propensity of those with power to protect it would keep them from fully enfranchising the newcomers. New states, he argued, “will have the same pride and passions which we have, and will either not unite with or will speedily revolt from the Union, if they are not in all respects placed on an equal footing with their brethren.” His argument carried.
Mason’s influence is clear in shaping the presidency— or, more particularly, in limiting its power by the threat of impeachment, and by the legislature’s power to overturn a veto.
On impeachment, Mason argued: “Shall any man be above justice? Above all shall that man be above it who can commit the most extensive injustice?” As drafted, impeachment was limited to treason and bribery. Mason thought that that definition was too narrow. “Attempts to subvert the Constitution may not be treason,” he noted, suggesting that “maladministration” be added to the list. Madison objected to this as vague, and Mason substituted words that stand as among the Constitution’s more ambiguous phrases: “high crimes and misdemeanors.”
On limiting veto power, Mason argued that unless the executive could be overruled,“We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one.” A veto was appropriate to “suspend offensive laws” while objections to them could be considered, but such laws would stand if they were re-passed “by a larger majority than that which first enacted them.” Mason suggested a two-thirds vote to override. Morris proposed three-fourths. The difference, he noted, was only two additional votes in the Senate and perhaps five in the House. Mason responded that no great mastery of arithmetic “was necessary to understand that three-fourths was more than two-thirds.” Mason’s standard was accepted.
Economics as well as politics figured in debate. The middle states—with Mason sharing this view—wanted a two-thirds legislative majority required to pass navigation acts; otherwise, they feared, a simple majority of Northern shipping states might act to hamstring their trade. Looking to their own interests, the Northern states preferred majority rule. Georgia and South Carolina, too, had a trade interest, and they wanted the slave trade continued. In effect, a deal was put forward. New England would support a continued trade in slaves at least until 1808. In exchange, Georgia and South Carolina would support majority rule on navigation acts.
On the convention floor, the unlikely combination of Mason and Morris denounced the plan. Slavery, Morris argued, was “the curse of heaven on the states where it prevailed.” Mason was no less condemnatory, claiming that slavery was a national, not a state, issue.The prospect of slave rebellion fomented by a foreign foe placed the entire nation at risk. It was also a bar to development. “Slavery discourages arts and manufactures,” Mason said. “The poor despise labor when performed by slaves.They prevent the immigration of whites who really enrich and strengthen a country.” Finally, slavery was an assault on character. “Every master of slaves,” said Mason—a category that, not incidentally, included himself—“is born a petty tyrant.”
Connecticut’s Oliver Ellsworth rather pointedly responded that, not ever having owned a slave, he could not vouch for the effect of slavery on the owners. If slavery was as bad as Mason suggested, why not ban it entirely? With perhaps feigned optimism, Ellsworth added: “As population increases poor laborers will be so plentiful as to render slaves useless. Slavery in time will not be a speck in our country.” John Rutledge of South Carolina was more direct. There was no moral issue. “The true question at present,” he said, “is whether the Southern states shall or shall not be parties to the Union.” No slave trade, no support for ratification.The compromise carried by a vote of 7-4.
By September 14, the draft Constitution was complete. Three delegates, however, saw work that remained. Edmund Randolph of Virginia urged that a second convention be held once states had considered the document. Mason, supported by Eldridge Gerry, rose to seek inclusion of a bill of rights—he could, he added, present a draft in several hours.
Roger Sherman argued that no bill of rights was needed. The government of limited powers they were creating had no authority to invade the rights proclaimed by the various states. Mason countered that a bill of rights “would give great quiet to the people.” Both Randolph’s call for a second convention and Mason’s for a bill of rights were rejected. Mason, as author of the first state bill of rights and the model of others, may have imagined his offer as the high point of his work at the convention. Politically, he was defeated; he may also have felt insulted.
On September 17, Mason, Randolph and Gerry attended the signing ceremony, but declined to sign. Mason soon thereafter wrote Jefferson, then in Paris,“Upon the most mature Consideration I was capable of, and from motives of sincere patriotism, I was under the necessity of refusing my signature.” Reviewing the Constitution, Jefferson expressed his own misgivings about the lack of a bill of rights. Perhaps, he soon wrote, the nine states that were needed to ratify the pact could do so, but the remaining four, by withholding approval, might force inclusion of a statement of rights.
The subsequent campaign to ratify the Constitution was without precedent. People were self-consciously considering a wholly new system of government.The broad argument for the Constitution, wrote historian Max Farrand, was that it was a straightforward document proposing needed remedies; to the extent it failed, provision existed to amend it. Its advocates included the remarkable trio of James Madison, Alexander Hamilton and John Jay, who published their arguments as the Federalist Papers.
The opposition also counted figures of note. In Mason’s Virginia, opponents included Patrick Henry; a young James Monroe; John Tyler and Benjamin Harrison—each the father of a future president; and Richard Henry Lee, who argued that to create a bad government out of fear of anarchy “is really saying that we must kill ourselves, for fear of dying.”
Back at Gunston Hall, Mason wrote out 16 objections to the Constitution. His principal one was that the Constitution had no bill of rights and would supersede state constitutions that did. He had others—the sanction of the slave trade; the fear that Virginia would be subject to navigation acts ruinous to its trade; and the concern that the “necessary and proper” clause included in the powers of Congress was a loophole through which endless imposition on the public would spill.
Interesting from a historical perspective,Mason feared the proposed Senate. Since its members would be selected by state legislatures for terms of six years, he believed it was a body inherently divorced from the public. Its special powers—to impeach and to approve treaties and judges—would, he believed, bring it into close consort with the president. In time, Mason feared, a sort of junta would develop. “This government will set out a moderate aristocracy,” he wrote. “[I]t is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”
Mason’s Objections, published and distributed throughout the Colonies,focused the thinking of the Anti-Federalists—those opposing ratification. A key concern was that, absent a bill of rights, the Constitution would leave the citizenship unprotected against the centralized authority that was being created.The issue was hard fought.In February 1788,Federalists in Massachusetts outmaneuvered Anti-Federalists to secure a 187-168 margin for ratification.
Mason’s position came at personal cost. One Federalist pamphleteer attributed opposition to the Constitution to “the madness of Mason, and the enmity of the Lee faction to General Washington.” For his part,Washington considered their long association at an end, referring to Mason as “my quondam friend.” When Mason spoke as a candidate to the state ratifying convention, one heckler called out,“Mr. Mason, you are an old man, and the public notices that you are losing your faculties.” Mason, never one to curry favor, responded, “Sir, the public will never notice when you lose yours.”
When Virginia’s delegates assembled at Richmond,two factors aided ratification.The first was the expectation that, if the system of government were approved, Virginia’s George Washington would be the first president.The second was that Edmund Randolph, who had declined to sign in Philadelphia, had switched sides, on the understanding that James Madison would seek a bill of rights from the First Congress. Mason was unmoved by the promises of Madison or the defection of Randolph, whom he termed a Benedict Arnold. George Mason and Patrick Henry argued that ratification would quickly follow if a bill of rights was adopted first. Henry placed before delegates a formal motion to defer action until such a document was presented to all states.The motion failed narrowly, 88-80. The Virginia Convention then voted to ratify the Constitution.Two days later, however, the convention’s Committee on Amendments approved a draft bill of rights for Madison to advocate in the First Congress. Mason served on that committee and its work closely paralleled his 1776 Declaration.
In the end, the outcome was rather like that which Jefferson had wished from Paris—the new government was established, but opposition proved sufficiently strong to force inclusion of a bill of rights. As historian Wilkins wrote, the opposition to ratification led by Mason “was strong enough, finally, to force Madison to promise the amendments would be offered during the First Congress.” Those amendments, passed by Congress, were quickly ratified. By December 5, 1791, the requisite number of states gave their approval and the Bill of Rights that Mason had so long advocated was added to the Constitution.
Mason, in declining health, imagined no further public role for himself. “I have no reason to expect my interest will have much weight in the new government,” he wrote to an associate, “having, as you know, warmly opposed it.” He did, at least, retain the warm approval of Jefferson, who wrote to Mason, “Certainly whenever I pass your road I shall do myself the pleasure of turning into it.”
Jefferson did so the final week of September 1792. He stayed at Gunston Hall, querying his host on the Constitutional Convention and other matters. Jefferson then headed to Philadelphia to take up his duties as America’s first secretary of state. Mason died a week later.
Originally published in the October 2006 issue of American History. To subscribe, click here.