Because it relates to economic life, the most immediate if not the most important aspect of daily life, the natural right to private property was an important factor in Mason's political thought — especially that property he regarded as illegitimate: chattel slavery. Mason had to proceed carefully, however. Calling an ancient institution like chattel slavery into question could very easily undermine the institution of private property itself, to say nothing of making him appear to be a hypocrite — as, in fact, his opponents were quick to claim.
Thomas Jefferson, an estimable, even great individual in many respects, was evidently unable or unwilling to deal with such a thorny issue. Jefferson avoided the issue of property in the Declaration of Independence, and allowed himself to be persuaded to drop a provision abolishing slavery. Otherwise, Jefferson closely followed Mason's lead with respect to the natural moral law.
The dangers associated with attacking chattel slavery (and, in our day, "wage slavery") and thereby undermining recognition of and respect for private property are not as farfetched as they might seem, as the case of Nathan C. Kouns demonstrates. Kouns, a devout Catholic, supported slavery and served as a Major in the Confederate Army during the American Civil War. He was evidently able to accept the equivocations of the southern American bishops in their anxiety to assure their flocks that the condemnation of chattel slavery by Pope Gregory XVI in the 1839 Constitution In Supremo ("Constitution" being a teaching, not a political document in this context) did not apply to slavery as practiced in the United States.
The southern American Catholic bishops assuaged their consciences and those of the faithful with the equivocation that the Papal Constitution only condemned the international slave trade, not slavery itself — as if employing slaves as labor, and dealing in them as a commodity were somehow morally different! Of course, an objective reading of the Constitution would have corrected this obvious error, as would reference to the numerous papal condemnations of slavery prior to that date. (See Rev. Joel S. Panzer, The Popes and Slavery. New York: Alba House, 1996.)
After the Civil War, Kouns seems to have become convinced that, because private property in human beings is wrong, all private property is wrong. Kouns then promoted socialism — the abolition of private property — as consistent with Catholic doctrine. He wrote two historical novels to present his case, Arius the Libyan, An Idyl [sic] of the Primitive Church (1883), and Dorcas, the Daughter of Faustina (1884), both of which enjoyed reasonably good sales into the 1920s.
The novels are competently written, and (if not exactly great literature) have convinced a number of critics and commentators that, despite their flat contradiction of Catholic doctrine, they detail authentic Catholic teaching regarding private property. It would not be too far-fetched to discover that Pope Leo XIII (who seems to have considered the United States something unique and special) was aware of the novels and the effect they had when he wrote Rerum Novarum. The 1891 encyclical is built around a series of explicit statements reaffirming private property as a natural right, the same as life, liberty, and "pursuit of happiness" (the acquisition and development of virtue).
As the draft of the Virginia Declaration of Rights clearly demonstrates, however, Mason attempted to insert into the resolution a respect for the human dignity of every individual, not just a select majority or minority. It is thus probably due more to Mason than to Jefferson that the American Republic is based on the Thomist, rather than the Scotist concept of the natural law (that is, Intellect or Nature over Will or Revelation). Mason was instrumental in making certain that the new Constitution of 1787 included a bill of fundamental natural rights, although the effort was spearheaded by fellow Virginian James Madison, whom many Constitutional scholars thereby credit with the first ten amendments.
The problem was that Madison doesn't seem to have had an equal understanding with Mason of the need to make certain that the institution of private property has the same protections as every other natural right. This left a serious problem in place, giving an either/or aspect to the slavery issue: either immediate and full emancipation, or nothing. The problem was that disaster would result in either event. As Helen Hill explains the situation in her biography of Mason, describing a conversation between Jefferson and Mason and witnessed by Philip Mazzei,
Philip Mazzei's "Memoirs" give an intimate picture of the two arguing these contrasting aspects of the problem, taking sides, one suspects, chiefly to clarify the issues. Jefferson was advocating abolition, arguing thatEducation and gradual emancipation might not satisfy the purists on either side, but it is the common sense approach, and had the potential to respect at least to some degree both the property of the slaveholders and the right of the slaves to liberty. Mason was punctilious in bringing property into the discussion; owners of slaves had acquired their property legally and, consistent with popular belief for thousands of years, legitimately. To dismiss this by mandating immediate emancipation, even with compensation offered to the slaveholders, could call property itself into question. By taking the expedient route, Madison managed to undermine a very important natural right.
It was demanded as much by humanity as by justice; that to keep in slavery beings born with rights equal to ours and who did not differ from us in anything but color, was an injustice not only barbarous and cruel, but even shameful, especially when they risked everything in helping us gain our freedom.
Mason and Mazzei dissented from this view:
Mr. George Mason said much more; and he showed the necessity of educating them before taking such a step, teaching them to make good use of their freedom. "Each one of us knows," he said, "that the negroes considered the work as punishment." He also convinced us that if they were not educated before being freed, the first use they would make of their liberty would be loafing, and hence they would become thieves out of necessity.
In the course of the Richmond debates, Mason fought the Constitution clause by clause, but his most effective oratory was reserved for the slavery provision. (Helen Hill, George Mason, Constitutionalist. Cambridge, Massachusetts: Harvard University Press, 1938, 217-218)
Mason, however, understood that man is both social and individual — a political animal, who only reaches his full potential by associating with other individuals and groups of his kind in the polis, an organized and formally legislated community.
Still, Mason lived in a society that, while it paid lip service to the equality of all men, rejected that same equality in practice. Many of the Founding Fathers assumed, with Locke and Sidney, that society is not natural to man. The liberal theory is that you accept infringement of certain rights when you agree to enter society in order to protect what remains.
Paradoxically, the idea that man outside society has all rights and accepts infringement in order to gain some measure of protection abolishes the concept of natural rights in the same breath that purports to defend it. An infringement of a right that can presumably be exercised absolutely is not the same as a limitation on the exercise of a right that is possessed absolutely, that is, inalienably. The former constitutes a tacit admission that possession of the right is not, after all, natural or absolute, while the latter is the normal working of the politikos bios, the "life of the citizen in the State." This in part consists of properly defining and limiting (not infringing on) the exercise of absolute rights so that man can live together in peace . . . naturally.
The liberal position is that anyone who has not been admitted to society cannot be recognized as a person, that is, as having rights. Consequently, most of the Founding Fathers accepted the "state of nature" theory common to Locke and Sidney, and their chief opponent, Hobbes. Mason understood that this made true equality impossible, for if you wished to keep someone in an unequal state such as slavery, you merely had to assert that members of a particular group, or even the group itself had not entered society.
Further, asserting a state of nature in which man not only possesses natural rights absolutely, but has the absolute (that is, unlimited) exercise thereof argues that the unlimited exercise of all rights is natural. This we know is impossible, for one of the primary "laws" of the common good (that is, of social justice), after the demand that the common good itself remain inviolate, is that no right or power can legitimately be exercised in any way that harms the right holder, other individuals or groups, or the common good itself. Limitation of exercise, even of rights that are possessed absolutely, is thus inherent in human nature itself.
Man's political nature is exhibited by his membership in a single group or (in practical terms) many groups that, in part, make up the common good and demonstrate the organized structure of society; the mere fact of a group itself is sufficient proof that someone is a member of society and is, in the truest sense, political. The moment you make conditions, that is, once you declare that personality is due to something other than mere humanity, you are, essentially, denying that man is political by nature, as well as undermining the natural moral law.
Fortunately, however, Mason had an inherent understanding of the importance of groups, and realized that true political action consists of something more than simply passing and enforcing laws. Mason's remarkable accomplishment was to insert Aristotle's concept of man as a political animal into a supremely individualistic culture and intellectual framework. He was able to find a middle ground and develop a synthesis between liberal philosophy's state of nature and Cardinal Bellarmine's concept that God grants certain rights to the collective.
Mason's via media was not articulated. It is, however, powerfully evident in his draft of the Virginia Declaration of Rights, his insistence on a bill of fundamental natural rights in the U.S. Constitution, and, fortunately, in his influence on the founding document of the United States: the Declaration of Independence.
Mason can therefore be given credit for the way in which the American approach to government and politics developed immediately following the Revolution. As we will see in the next posting in this series, private property, free association, and the idea of groups were in America combined in a unique new way that developed not only a new science of politics, but gave hints of a new concept in moral philosophy, the idea of "social virtue," that is, legal justice as a particular, not merely a general virtue.