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A power to advance the public happiness involves a discretion which may be misapplied and abused.



James Madison, Federalist 41



Saturday, February 20, 2010

A Letter to Thomas Jefferson 1781

WARNING: Do not break the law before, during, or after reading anything I mention.


An excerpt from a footnote in my article on George Washington's preparation for peace and war in 1783.

     In a letter to Thomas Jefferson, on September 27, 1781, in Robert A. Rutland, ed. The Papers of George Mason, vol.2 (Chapel Hill 1970), 697-699, George Mason expressed his great displeasure with, and suspicion of, the Confederated Congress’ seemingly ambitious intentions to settle the western territories, especially in Virginia. Revenues Congress would derive from western territories were to be set aside to pay the national debt. Mason identified an issue of congressional jurisdiction. The integrity of state borders insured sovereignty. Mason asked Jefferson if he had “been informed of the factious, illegal, & dangerous schemes now in Contemplation in Congress, for dismembering the Commonwealth of Virginia, & erecting a new State or States to the Westward of the Alleghany Mountains.” It was unconscionable, Mason thought, that Congress even contemplated such an expansive power. Mason’s interpretation of the Articles of Confederation led him to believe Congress did not posses the authority to enact such legislative measures. The power Mason identified was “directly contrary to the Articles of Confederation.” It was a power that had a propensity to become a pernicious doctrine over time. Mason claimed that the power was “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.” Mason thought Congress was working under false assumptions. It seems as though Mason identified the problem of implied and explicit powers. At an early stage, Mason was worried about a grand conspiracy moving the Confederated Congress against State sovereignty and liberty. Mason jokingly mentioned that he would “not have troubled” the busy Virginia Delegate to Congress, “but that I apprehended in the late Confusions, & sudden Removals of public, as well as private Papers, the Articles of Confederation may have been sent to some distant Place.” Mason connected the devaluation and curious disappearance of paper currency with depreciable parchment. It was a matter of public trust, confidence, and integrity. It “will prove that Congress” was “arrogating to themselves an unwarrantable & dangerous Power; which is in its Nature subversive of American Liberty; for if they can stride over the Lines of the Confederation, & 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.” The existence of the states as independent sovereign jurisdictions was at stake.