In 1777 the Massachusetts General Court (the state’s legislative body) decided that in its next session it should draw up a constitution for the state, which document should then be submitted to the people for approval or disapproval in their town meetings. Accordingly, the people of the state were advised to consider suitability for making a constitution in their choice of legislators in the coming election. The newly elected legislature did submit a document (the proposed Constitution of 1778), but it failed to get the required vote for adoption in the town meetings, in part because of its content (what it provided and what it failed to provide), but also because there was strong feeling that constitutions ought always be drawn up in a convention of men chosen for that sole purpose. The legislature then provided for popular election of delegates whose sole job would be the presentation of a constitution; those delegates met and proposed a document that was approved in the town meetings and became the Massachusetts Constitution of 1780. The item presented here relates to the acceptability of the constitution submitted in the spring of 1778. As a first step, prior to decision in the town meetings, a number of the towns in Essex County (the northeast corner of Massachusetts) elected to send delegates to a convention where they should thoroughly debate the merits and defects of the proposed document and report back to the several towns the common sentiments of those who attended the proceedings. Twelve of the twenty-one towns in Essex county appear to have sent delegations. The cumulative judgment of the assemblage was summarized and subjected to remarkably incisive analysis in the famedEssex Result, here presented in its entirety. The composition of the Result, read to the convention and accepted by it, is credited to Theophilus Parsons, a lawyer of Newburyport and then a young man of twenty-eight years. Parsons was later to have a distinguished career as attorney-at-law before Massachusetts courts and to serve for seven years as Chief Justice of the Supreme Judicial Court of Massachusetts. Source: Oscar Handlin and Mary Handlin, eds., The Popular Sources of Authority: Documents on the Massachusetts Constitution of 1780, pp. 324-65.
Result of the Convention of Delegates Holden at Ipswich in the County of Essex, Who Were Deputed to Take into Consideration the Constitution and Form of Government, Proposed by the Convention of the State of Massachusetts-Bay
In Convention of Delegates from the several towns of Lynn, Salem, Danvers, Wenham, Manchester, Gloucester, Ipswich, Newbury-Port, Salisbury, Methuen, Boxford, and Topsfield, holden by adjournment at Ipswich, on the twenty-ninth day of April, one thousand seven hundred and seventy-eight.
Peter Coffin Esq; in the Chair.
The Constitution and form of Government framed by the Convention of this State, was read paragraph by paragraph, and after debate, the following votes were passed.
1. That the present situation of this State renders it best, that the framing of a Constitution therefor, should be postponed ’till the public affairs are in a more peaceable and settled condition.
2. That a bill of rights, clearly ascertaining and defining the rights of conscience, and that security of person and property, which every member in the State hath a right to expect from the supreme power thereof, ought to be settled and established, previous to the ratification of any constitution for the State.
3. That the executive power in any State, ought not to have any share or voice in the legislative power in framing the laws, and therefore, that the second article of the Constitution is liable to exception.
4. That any man who is chosen Governor, ought to be properly qualified in point of property—that the qualification therefor, mentioned in the third article of the Constitution, is not sufficient—nor is the same qualification directed to be ascertained on fixed principles, as it ought to be, on account of the fluctuation of the nominal value of money, and of property.
5. That in every free Republican Government, where the legislative power is rested in an house or houses of representatives, all the members of the State ought to be equally represented.
6. That the mode of representation proposed in the sixth article of the constitution, is not so equal a representation as can reasonably be devised.
7. That therefore the mode of representation in said sixth article is exceptionable.
8. That the representation proposed in said article is also exceptionable, as it will produce an unwieldy assembly.
9. That the mode of election of Senators pointed out in the Constitution is exceptionable.
10. That the rights of conscience, and the security of person and property each member of the State is entitled to, are not ascertained and defined in the Constitution, with a precision sufficient to limit the legislative power—and therefore, that the thirteenth article of the constitution is exceptionable.
11. That the fifteenth article is exceptionable, because the numbers that constitute a quorum in the House of Representatives and Senate, are too small.
12. That the seventeenth article of the constitution is exceptionable, because the supreme executive officer is not vested with proper authority—and because an independence between the executive and legislative body is not preserved.
13. That the nineteenth article is exceptionable, because a due independence is not kept up between the supreme legislative, judicial, and executive powers, nor between any two of them.
14. That the twentieth article is exceptionable, because the supreme executive officer hath a voice, and must be present in that Court, which alone hath authority to try impeachments.
15. That the twenty second article is exceptionable, because the supreme executive power is not preserved distinct from, and independent of, the supreme legislative power.
16. That the twenty third article is exceptionable, because the power of granting pardons is not solely vested in the supreme executive power of the State.
17. That the twenty eighth article is exceptionable, because the delegates for the Continental Congress may be elected by the House of Representatives, when all the Senators may vote against the election of those who are delegated.
18. That the thirty fourth article is exceptionable, because the rights of conscience are not therein clearly defined and ascertained; and further, because the free exercise and enjoyment of religious worship is there said to be allowed to all the protestants in the State, when in fact, that free exercise and enjoyment is the natural and uncontroulable right of every member of the State.
A committee was then appointed to attempt the ascertaining of the true principles of government, applicable to the territory of the Massachusetts-Bay; to state the non-conformity of the constitution proposed by the Convention of this State to those principles, and to delineate the general outlines of a constitution conformable thereto; and to report the same to this Body.
This Convention was then adjourned to the twelfth day of May next, to be holden at Ipswich.
The Convention met pursuant to adjournment, and their committee presented the following report.
The committee appointed by this Convention at their last adjournment, have proceeded upon the service assigned them. With diffidence have they undertaken the several parts of their duty, and the manner in which they have executed them, they submit to the candor of this Body. When they considered of what vast consequence, the forming of a Constitution is to the members of this State, the length of time that is necessary to canvass and digest any proposed plan of government, before the establishment of it, and the consummate coolness, and solemn deliberation which should attend, not only those gentlemen who have, reposed in them, the important trust of delineating the several lines in which the various powers of government are to move, but also all those, who are to form an opinion of the execution of that trust, your committee must be excused when they express a surprise and regret, that so short a time is allowed the freemen inhabiting the territory of the Massachusetts-Bay, to revise and comprehend the form of government proposed to them by the convention of this State, to compare it with those principles on which every free government ought to be founded, and to ascertain it’s conformity or non-conformity thereto. All this is necessary to be done, before a true opinion of it’s merit or demerit can be formed. This opinion is to be certified within a time which, in our apprehension, is much too short for this purpose, and to be certified by a people, who, during that time, have had and will have their minds perplexed and oppressed with a variety of public cares. The committee also beg leave to observe, that the constitution proposed for public approbation, was formed by gentlemen, who, at the same time, had a large share in conducting an important war, and who were employed in carrying into execution almost all the various powers of government.
The committee however proceeded in attempting the task assigned them, and the success of that attempt is now reported.
The reason and understanding of mankind, as well as the experience of all ages, confirm the truth of this proposition, that the benefits resulting to individuals from a free government, conduce much more to their happiness, than the retaining of all their natural rights in a state of nature. These benefits are greater or less, as the form of government, and the mode of exercising the supreme power of the State, are more or less conformable to those principles of equal impartial liberty, which is the property of all men from their birth as the gift of their Creator, compared with the manners and genius of the people, their occupations, customs, modes of thinking, situation, extent of country, and numbers. If the constitution and form of government are wholly repugnant to those principles, wretched are the subjects of that State. They have surrendered a portion of their natural rights, the enjoyment of which was in some degree a blessing, and the consequence is, they find themselves stripped of the remainder. As an anodyne to compose the spirits of these slaves, and to lull them into a passively obedient state, they are told, that tyranny is preferable to no government at all; a proposition which is to be doubted, unless considered under some limitation. Surely a state of nature is more excellent than that, in which men are meanly submissive to the haughty will of an imperious tyrant, whose savage passions are not bounded by the laws of reason, religion, honor, or a regard to his subjects, and the point to which all his movements center, is the gratification of a brutal appetite. As in a state of nature much happiness cannot be enjoyed by individuals, so it has been conformable to the inclinations of almost all men, to enter into a political society so constituted, as to remove the inconveniences they were obliged to submit to in their former state, and, at the same time, to retain all those natural rights, the enjoyment of which would be consistent with the nature of a free government, and the necessary subordination to the supreme power of the state.
To determine what form of government, in any given case, will produce the greatest possible happiness to the subject, is an arduous task, not to be compassed perhaps by any human powers. Some of the greatest geniuses and most learned philosophers of all ages, impelled by their sollicitude to promote the happiness of mankind, have nobly dared to attempt it: and their labours have crowned them with immortality. A Solon, a Lycurgus of Greece, a Numa of Rome are remembered with honor, when the wide extended empires of succeeding tyrants, are hardly important enough to be faintly sketched out on the map, while their superb thrones have long since crumbled into dust. The man who alone undertakes to form a constitution, ought to be an unimpassioned being; one enlightened mind; biassed neither by the lust of power, the allurements of pleasure, nor the glitter of wealth; perfectly acquainted with all the alienable and unalienable rights of mankind; possessed of this grand truth, that all men are born equally free, and that no man ought to surrender any part of his natural rights, without receiving the greatest possible equivalent; and influenced by the impartial principles of rectitude and justice, without partiality for, or prejudice against the interest or professions of any individuals or class of men. He ought also to be master of the histories of all the empires and states which are now existing, and all those which have figured in antiquity, and thereby able to collect and blend their respective excellencies, and avoid those defects which experience hath pointed out. Rousseau, a learned foreigner, a citizen of Geneva, sensible of the importance and difficulty of the subject, thought it impossible for any body of people, to form a free and equal constitution for themselves, in which, every individual should have equal justice done him, and be permitted to enjoy a share of power in the state, equal to what should be enjoyed by any other. Each individual, said he, will struggle, not only to retain all his own natural rights, but to acquire a controul over those of others. Fraud, circumvention, and an union of interest of some classes of people, combined with an inattention to the rights of posterity, will prevail over the principles of equity, justice, and good policy. The Genevans, perhaps the most virtuous republicans now existing, thought like Rousseau. They called the celebrated Calvin to their assistance. He came, and, by their gratitude, have they embalmed his memory.
The freemen inhabiting the territory of the Massachusetts-Bay are now forming a political society for themselves. Perhaps their situation is more favorable in some respects, for erecting a free government, than any other people were ever favored with. That attachment to old forms, which usually embarrasses, has not place amongst them. They have the history and experience of all States before them. Mankind have been toiling through ages for their information; and the philosophers and learned men of antiquity have trimmed their midnight lamps, to transmit to them instruction. We live also in an age, when the principles of political liberty, and the foundation of governments, have been freely canvassed, and fairly settled. Yet some difficulties we have to encounter. Not content with removing our attachment to the old government, perhaps we have contracted a prejudice against some part of it without foundation. The idea of liberty has been held up in so dazzling colours, that some of us may not be willing to submit to that subordination necessary in the freest States. Perhaps we may say further, that we do not consider ourselves united as brothers, with an united interest, but have fancied a clashing of interests amongst the various classes of men, and have acquired a thirst of power, and a wish of domination, over some of the community. We are contending for freedom—Let us all be equally free—It is possible, and it is just. Our interests when candidly considered are one. Let us have a constitution founded, not upon party or prejudice—not one for to-day or to-morrow—but for posterity. Let Esto perpetua be it’s motto. If it is founded in good policy; it will be founded in justice and honesty. Let all ambitious and interested views be discarded, and let regard be had only to the good of the whole, in which the situation and rights of posterity must be considered: and let equal justice be done to all the members of the community; and we thereby imitate our common father, who at our births, dispensed his favors, not only with a liberal, but with an equal hand.
Was it asked, what is the best form of government for the people of the Massachusetts-Bay? we confess it would be a question of infinite importance: and the man who could truly answer it, would merit a statue of gold to his memory, and his fame would be recorded in the annals of late posterity, with unrivalled lustre. The question, however, must be answered, and let it have the best answer we can possibly give it. Was a man to mention a despotic government, his life would be a just forfeit to the resentments of an affronted people. Was he to hint monarchy, he would deservedly be hissed off the stage, and consigned to infamy. A republican form is the only one consonant to the feelings of the generous and brave Americans. Let us now attend to those principles, upon which all republican governments, who boast any degree of political liberty, are founded, and which must enter into the spirit of a free republican constitution. For all republics are not Free.
All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of those rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange. Sometimes we shall mention the surrendering of a power to controul our natural rights, which perhaps is speaking with more precision, than when we use the expression of parting with natural rights—but the same thing is intended. Those rights which are unalienable, and of that importance, are called the rights of conscience. We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a controul over it, is an usurper; for no consent can be pleaded to justify the controul, as any consent in this case is void. The alienation of some rights, in themselves alienable, may be also void, if the bargain is of that nature, that no equivalent can be received. Thus, if a man surrender all his alienable rights, without reserving a controul over the supreme power, or a right to resume in certain cases, the surrender is void, for he becomes a slave; and a slave can receive no equivalent. Common equity would set aside this bargain.
When men form themselves into society, and erect a body politic or State, they are to be considered as one moral whole, which is in possession of the supreme power of the State. This supreme power is composed of the powers of each individual collected together, andvoluntarily parted with by him. No individual, in this case, parts with his unalienable rights, the supreme power therefore cannot controul them. Each individual also surrenders the power of controuling his natural alienable rights, only when the good of the whole requires it. The supreme power therefore can do nothing but what is for the good of the whole; and when it goes beyond this line, it is a power usurped. If the individual receives an equivalent for the right of controul he has parted with, the surrender of that right is valid; if he receives no equivalent, the surrender is void, and the supreme power as it respects him is an usurper. If the supreme power is so directed and executed that he does not enjoy political liberty, it is an illegal power, and he is not bound to obey. Political liberty is by some defined, a liberty of doing whatever is not prohibited by law. The definition is erroneous. A tyrant may govern by laws. The republics of Venice and Holland govern by laws, yet those republics have degenerated into insupportable tyrannies. Let it be thus defined; political liberty is the right every man in the state has, to do whatever is not prohibited by laws, to which he has given his consent. This definition is in unison with the feelings of a free people. But to return—If a fundamental principle on which each individual enters into society is, that he shall be bound by no laws but those to which he has consented, he cannot be considered as consenting to any law enacted by a minority: for he parts with the power of controuling his natural rights, only when the good of the whole requires it; and of this there can be but one absolute judge in the State. If the minority can assume the right of judging, there may then be two judges; for however large the minority may be, there must be another body still larger, who have the same claim, if not a better, to the right of absolute determination. If therefore the supreme power should be so modelled and exerted, that a law may be enacted by a minority, the inforcing of that law upon an individual who is opposed to it, is an act of tyranny. Further, as every individual, in entering into the society, parted with a power of controuling his natural rights equal to that parted with by any other, or in other words, as all the members of the society contributed an equal portion of their natural rights, towards the forming of the supreme power, so every member ought to receive equal benefit from, have equal influence in forming, and retain an equal controul over, the supreme power.
It has been observed, that each individual parts with the power of controuling his natural alienable rights, only when the good of the whole requires it, he therefore has remaining, after entering into political society, all his unalienable natural rights, and a part also of his alienable natural rights, provided the good of the whole does not require the sacrifice of them. Over the class of unalienable rights the supreme power hath no controul, and they ought to be clearly defined and ascertained in a BILL of RIGHTS, previous to the ratification of any constitution. The bill of rights should also contain the equivalent every man receives, as a consideration for the rights he has surrendered. This equivalent consists principally in the security of his person and property, and is also unassailable by the supreme power: for if the equivalent is taken back, those natural rights which were parted with to purchase it, return to the original proprietor, as nothing is more true, than that Allegiance And Protection Are Reciprocal.
The committee also proceeded to consider upon what principles, and in what manner, the supreme power of the state thus composed of the powers of the several individuals thereof, may be formed, modelled, and exerted in a republic, so that every member of the state may enjoy political liberty. This is called by some, the ascertaining of the political law of the state. Let it now be called the forming of a constitution.
The reason why the supreme governor of the world is a rightful and just governor, and entitled to the allegiance of the universe is, because he is infinitely good, wise, and powerful. His goodness prompts him to the best measures, his wisdom qualifies him to discern them, and his power to effect them. In a state likewise, the supreme power is best disposed of, when it is so modelled and balanced, and rested in such hands, that it has the greatest share of goodness, wisdom, and power, which is consistent with the lot of humanity.
That state, (other things being equal) which has reposed the supreme power in the hands of one or a small number of persons, is the most powerful state. An union, expedition, secrecy and dispatch are to be found only here. Where power is to be executed by a large number, there will not probably be either of the requisites just mentioned. Many men have various opinions: and each one will be tenacious of his own, as he thinks it preferable to any other; for when he thinks otherwise, it will cease to be his opinion. From this diversity of opinions results disunion; from disunion, a want of expedition and dispatch. And the larger the number to whom a secret is entrusted, the greater is the probability of it’s disclosure. This inconvenience more fully strikes us when we consider that want of secrecy may prevent the successful execution of any measures, however excellently formed and digested.
But from a single person, or a very small number, we are not to expect that political honesty, and upright regard to the interest of the body of the people, and the civil rights of each individual, which are essential to a good and free constitution. For these qualities we are to go to the body of the people. The voice of the people is said to be the voice of God. No man will be so hardy and presumptuous, as to affirm the truth of that proposition in it’s fullest extent. But if this is considered as the intent of it, that the people have always a disposition to promote their own happiness, and that when they have time to be informed, and the necessary means of information given them, they will be able to determine upon the necessary measures therefor, no man, of a tolerable acquaintance with mankind, will deny the truth of it. The inconvenience and difficulty in forming any free permanent constitution are, that such is the lot of humanity, the bulk of the people, whose happiness is principally to be consulted in forming a constitution, and in legislation, (as they include the majority) are so situated in life, and such are their laudable occupations, that they cannot have time for, nor the means of furnishing themselves with proper information, but must be indebted to some of their fellow subjects for the communication. Happy is the man, and blessings will attend his memory, who shall improve his leisure, and those abilities which heaven has indulged him with, in communicating that true information, and impartial knowledge, to his fellow subjects, which will insure their happiness. But the artful demagogue, who to gratify his ambition or avarice, shall, with the gloss of false patriotism, mislead his countrymen, and meanly snatch from them the golden glorious opportunity of forming a system of political and civil liberty, fraught with blessings for themselves, and remote posterity, what language can paint his demerit? The execrations of ages will be a punishment inadequate; and his name, though ever blackening as it rolls down the stream of time, will not catch its proper hue.
Yet, when we are forming a Constitution, by deductions that follow from established principles, (which is the only good method of forming one for futurity,) we are to look further than to the bulk of the people, for the greatest wisdom, firmness, consistency, and perseverance. These qualities will most probably be found amongst men of education and fortune. From such men we are to expect genius cultivated by reading, and all the various advantages and assistances, which art, and a liberal education aided by wealth, can furnish. From these result learning, a thorough knowledge of the interests of their country, when considered abstractedly, when compared with the neighbouring States, and when with those more remote, and an acquaintance with it’s produce and manufacture, and it’s exports and imports. All these are necessary to be known, in order to determine what is the true interest of any state; and without that interest is ascertained, impossible will it be to discover, whether a variety of certain laws may be beneficial or hurtful. From gentlemen whose private affairs compel them to take care of their own household, and deprive them of leisure, these qualifications are not to be generally expected, whatever class of men they are enrolled in.
Let all their respective excellencies be united. Let the supreme power be so disposed and ballanced, that the laws may have in view the interest of the whole; let them be wisely and consistently framed for that end, and firmly adhered to; and let them be executed with vigour and dispatch.
Before we proceed further, it must be again considered, and kept always in view, that we are not attempting to form a temporary constitution, one adjusted only to our present circumstances. We wish for one founded upon such principles as will secure to us freedom and happiness, however our circumstances may vary. One that will smile amidst the declensions of European and Asiatic empires, and survive the rude storms of time. It is not therefore to be understood, that all the men of fortune of the present day, are men of wisdom and learning, or that they are not. Nor that the bulk of the people, the farmers, the merchants, the tradesmen, and labourers, are all honest and upright, with single views to the public good, or that they are not. In each of the classes there are undoubtedly exceptions, as the rules laid down are general. The proposition is only this. That among gentlemen of education, fortune and leisure, we shall find the largest number of men, possessed of wisdom, learning, and a firmness and consistency of character. That among the bulk of the people, we shall find the greatest share of political honesty, probity, and a regard to the interest of the whole, of which they compose the majority. That wisdom and firmness are not sufficient without good intentions, nor the latter without the former. The conclusion is, let the legislative body unite them all. The former are called the excellencies that result from an aristocracy; the latter, those that result from a democracy.
The supreme power is considered as including the legislative, judicial, and executive powers. The nature and employment of these several powers deserve a distinct attention.
The legislative power is employed in making laws, or prescribing such rules of action to every individual in the state, as the good of the whole requires, to be conformed to by him in his conduct to the governors and governed, with respect both to their persons and property, according to the several relations he stands in. What rules of action the good of the whole requires, can be ascertained only by the majority, for a reason formerly mentioned. Therefore the legislative power must be so formed and exerted, that in prescribing any rule of action, or, in other words, enacting any law, the majority must consent. This may be more evident, when the fundamental condition on which every man enters into society, is considered. No man consented that his natural alienable rights should be wantonly controuled; they were controulable, only when that controul should be subservient to the good of the whole; and that subserviency, from the very nature of government, can be determined but by one absolute judge. The minority cannot be that judge, because then there may be two judges opposed to each other, so that this subserviency remains undetermined. Now the enacting of a law, is only the exercise of this controul over the natural alienable rights of each member of the state; and therefore this law must have the consent of the majority, or be invalid, as being contrary to the fundamental condition of the original social contract. In a state of nature, every man had the sovereign controul over his own person. He might also have, in that state, a qualified property. Whatever lands or chattels he had acquired the peaceable possession of, were exclusively his, by right of occupancy or possession. For while they were unpossessed he had a right to them equally with any other man, and therefore could not be disturbed in his possession, without being injured; for no man could lawfully dispossess him, without having a better right, which no man had. Over this qualified property every man in a state of nature had also a sovereign controul. And in entering into political society, he surrendered this right of controul over his person and property, (with an exception to the rights of conscience) to the supreme legislative power, to be exercised by the power,when the good of the whole demanded it. This was all the right he could surrender, being all the alienable right of which he was possessed. The only objects of legislation therefore, are the person and property of the individuals which compose the state. If the law affects only the persons of the members, the consent of a majority of any members is sufficient. If the law affects the property only, the consent of those who hold a majority of the property is enough. If it affects, (as it will very frequently, if not always,) both the person and property, the consent of a majority of the members, and of those members also, who hold a majority of the property is necessary. If the consent of the latter is not obtained, their interest is taken from them against their consent, and their boasted security of property is vanished. Those who make the law, in this case give and grant what is not theirs. The law, in it’s principles, becomes a second stamp act. Lord Chatham very finely ridiculed the British house of commons upon that principle. “You can give and grant, said he, only your own. Here you give and grant, what? The property of the Americans.” The people of the Massachusetts-Bay then thought his Lordship’s ridicule well pointed. And would they be willing to merit the same? Certainly they will agree in the principle, should they mistake the application. The laws of the province of Massachusetts-Bay adopted the same principle, and very happily applied it. As the votes of proprietors of common and undivided lands in their meetings, can affect only their property, therefore it is enacted, that in ascertaining the majority, the votes shall be collected according to the respective interests of the proprietors. If each member, without regard to his property, has equal influence in legislation with any other, it follows, that some members enjoy greater benefits and powers in legislation than others, when these benefits and powers are compared with the rights parted with to purchase them. For the property-holder parts with the controul over his person, as well as he who hath no property, and the former also parts with the controul over his property, of which the latter is destitute. Therefore to constitute a perfect law in a free state, affecting the persons and property of the members, it is necessary that the law be for the good of the whole, which is to be determined by a majority of the members, and that majority should include those, who possess a major part of the property in the state.
The judicial power follows next after the legislative power; for it cannot act, until after laws are prescribed. Every wise legislator annexes a sanction to his laws, which is most commonly penal, (that is) a punishment either corporal or pecuniary, to be inflicted on the member who shall infringe them. It is the part of the judicial power (which in this territory has always been, and always ought to be, a court and jury) to ascertain the member who hath broken the law. Every man is to be presumed innocent, until the judicial power hath determined him guilty. When that decision is known, the law annexes the punishment, and the offender is turned over to the executive arm, by whom it is inflicted on him. The judicial power hath also to determine what legal contracts have been broken, and what member hath been injured by a violation of the law, to consider the damages that have been sustained, and to ascertain the recompense. The executive power takes care that this recompense is paid.
The executive power is sometimes divided into the external executive, and internal executive. The former comprehends war, peace, the sending and receiving ambassadors, and whatever concerns the transactions of the state with any other independent state. The confederation of the United States of America hath lopped off this branch of the executive, and placed it in Congress. We have therefore only to consider the internal executive power, which is employed in the peace, security and protection of the subject and his property, and in the defence of the state. The executive power is to marshal and command her militia and armies for her defence, to enforce the law, and to carry into execution all the others of the legislative powers.
A little attention to the subject will convince us, that these three powers ought to be in different hands, and independent of one another, and so ballanced, and each having that check upon the other, that their independence shall be preserved—If the three powers are united, the government will be absolute, whether these powers are in the hands of one or a large number. The same party will be the legislator, accuser, judge and executioner; and what probability will an accused person have of an acquittal, however innocent he may be, when his judge will be also a party.
If the legislative and judicial powers are united, the maker of the law will also interpret it; and the law may then speak a language, dictated by the whims, the caprice, or the prejudice of the judge, with impunity to him—And what people are so unhappy as those, whose laws are uncertain. It will also be in the breast of the judge, when grasping after his prey, to make a retrospective law, which shall bring the unhappy offender within it; and this also he can do with impunity—The subject can have no peaceable remedy—The judge will try himself, and an acquittal is the certain consequence. He has it also in his power to enact any law, which may shelter him from deserved vengeance.
Should the executive and legislative powers be united, mischiefs the most terrible would follow. The executive would enact those laws it pleased to execute, and no others—The judicial power would be set aside as inconvenient and tardy—The security and protection of the subject would be a shadow—The executive power would make itself absolute, and the government end in a tyranny—Lewis the eleventh of France, by cunning and treachery compleated the union of the executive and legislative powers of that kingdom, and upon that union established a system of tyranny. France was formerly under a free government.
The assembly or representatives of the united states of Holland, exercise the executive and legislative powers, and the government there is absolute.
Should the executive and judicial powers be united, the subject would then have no permanent security of his person and property. The executive power would interpret the laws and bend them to his will; and, as he is the judge, he may leap over them by artful constructions, and gratify, with impunity, the most rapacious passions. Perhaps no cause in any state has contributed more to promote internal convulsions, and to stain the scaffold with it’s best blood, than this unhappy union. And it is an union which the executive power in all states, hath attempted to form: if that could not be compassed, to make the judicial power dependent upon it. Indeed the dependence of any of these powers upon either of the others, which in all states has always been attempted by one or the other of them, has so often been productive of such calamities, and of the shedding of such oceans of blood, that the page of history seems to be one continued tale of human wretchedness.
The following principles now seem to be established.
1. That the supreme power is limited, and cannot controul the unalienable rights of mankind, nor resume the equivalent (that is, the security of person and property) which each individual receives, as a consideration for the alienable rights he parted with in entering into political society.
2. That these unalienable rights, and this equivalent, are to be clearly defined and ascertained in a BILL of RIGHTS, previous to the ratification of any constitution.
3. That the supreme power should be so formed and modelled, as to exert the greatest possible power, wisdom, and goodness.
4. That the legislative, judicial, and executive powers, are to be lodged in different hands, that each branch is to be independent, and further, to be so ballanced, and be able to exert such checks upon the others, as will preserve it from a dependence on, or an union with them.
5. That government can exert the greatest power when it’s supreme authority is vested in the hands of one or a few.
6. That the laws will be made with the greatest wisdom, and best intentions, when men, of all the several classes in the state concur in the enacting of them.
7. That a government which is so constituted, that it cannot afford a degree of political liberty nearly equal to all it’s members, is not founded upon principles of freedom and justice, and where any member enjoys no degree of political liberty, the government, so far as it respects him, is a tyranny, for he is controuled by laws to which he has never consented.
8. That the legislative power of a state hath no authority to controul the natural rights of any of it’s members, unless the good of the whole requires it.
9. That a majority of the state is the only judge when the general good does require it.
10. That where the legislative power of the state is so formed, that a law may be enacted by the minority, each member of the state does not enjoy political liberty. And
11. That in a free government, a law affecting the person and property of it’s members, is not valid, unless it has the consent of a majority of the members, which majority should include those, who hold a major part of the property in the state.
It may be necessary to proceed further, and notice some particular principles, which should be attended to in forming the three several powers in a free republican government.
The first important branch that comes under our consideration, is the legislative body. Was the number of the people so small, that the whole could meet together without inconvenience, the opinion of the majority would be more easily known. But, besides the inconvenience of assembling such numbers, no great advantages could follow. Sixty thousand people could not discuss with candor, and determine with deliberation. Tumults, riots, and murder would be the result. But the impracticability of forming such an assembly, renders it needless to make any further observations. The opinions and consent of the majority must be collected from persons, delegated by every freeman of the state for that purpose. Every freeman, who hath sufficient discretion, should have a voice in the election of his legislators. To speak with precision, in every free state where the power of legislation is lodged in the hands of one or more bodies of representatives elected for that purpose, the person of every member of the state, and all the property in it, ought to be represented, because they are objects of legislation. All the members of the state are qualified to make the election, unless they have not sufficient discretion, or are so situated as to have no wills of their own. Persons not twenty one years old are deemed of the former class, from their want of years and experience. The municipal law of this country will not trust them with the disposition of their lands, and consigns them to the care of their parents or guardians. Women what age soever they are of, are also considered as not having a sufficient acquired discretion; not from a deficiency in their mental powers, but from the natural tenderness and delicacy of their minds, their retired mode of life, and various domestic duties. These concurring, prevent that promiscuous intercourse with the world, which is necessary to qualify them for electors. Slaves are of the latter class and have no wills. But are slaves members of a free government? We feel the absurdity, and would to God, the situation of America and the tempers of it’s inhabitants were such, that the slave-holder could not be found in the land.
The rights of representation should be so equally and impartially distributed, that the representatives should have the same views, and interests with the people at large. They should think, feel, and act like them, and in fine, should be an exact miniature of their constituents. They should be (if we may use the expression) the whole body politic, with all it’s property, rights, and privileges, reduced to a small scale, every part being diminished in just proportion. To pursue the metaphor. If in adjusting the representation of freeman, any ten are reduced into one, all the other tens should be alike reduced: or if any hundred should be reduced to one, all the other hundreds should have just the same reduction. The representation ought also to be adjusted, that it should be the interest of the representatives at all times, to do justice, therefore equal interest among the people, should have equal interest among the body of representatives. The majority of the representatives should also represent a majority of the people, and the legislative body should be so constructed, that every law affecting property, should have the consent of those who hold a majority of the property. The law would then be determined to be for the good of the whole by the proper judge, the majority, and the necessary consent thereto would be obtained: and all the members of the State would enjoy political liberty, and an equal degree of it. If the scale to which the body politic is to be reduced, is but a little smaller than the original, or, in other words, if a small number of freemen should be reduced to one, that is, send one representative, the number of representatives would be too large for the public good. The expences of government would be enormous. The body would be too unwieldy to deliberate with candor and coolness. The variety of opinions and oppositions would irritate the passions. Parties would be formed and factions engendered. The members would list under the banners of their respective leaders: address and intrigue would conduct the debates, and the result would tend only to promote the ambition or interest of a particular part. Such has always been in some degree, the course and event of debates instituted and managed by a large multitude.
For these reasons, some foreign politicians have laid it down as a rule, that no body of men larger than an hundred, would transact business well: and Lord Chesterfield called the British house of commons a mere mob, because of the number of men which composed it.
Elections ought also to be free. No bribery, corruption, or undue influence should have place. They stifle the free voice of the people, corrupt their morals, and introduce a degeneracy of manners, a supineness of temper, and an inattention to their liberties, which pave the road for the approach of tyranny, in all it’s frightful forms.
The man who buys an elector by his bribes, will sell him again, and reap a profit from the bargain; and he thereby becomes a dangerous member of society. The legislative body will hold the purse strings, and men will struggle for a place in that body to acquire a share of the public wealth. It has always been the case. Bribery will be attempted, and the laws will not prevent it. All states have enacted severe laws against it, and they have been ineffectual. The defect was in their forms of government. They were not so contrived, as to prevent the practicability of it. If a small corporation can place a man in the legislative body, to bribe will be easy and cheap. To bribe a large corporation would be difficult and expensive, if practicable. In Great-Britain, the representatives of their counties and great cities are freely elected. To bribe the electors there, is impracticable: and their representatives are the most upright and able statesmen in parliament. The small boroughs are bought by the ministry and opulent men; and their representatives are the mere tools of administration or faction. Let us take warning.
A further check upon bribery is, when the corrupter of a people knows not the electors. If delegates were first appointed by a number of corporations, who at a short day were to elect their representatives, these bloodhounds in a state would be at fault. They would not scent their game. Besides, the representatives would probably be much better men—they would be double refined.
But it may be said, the virtuous American would blast with indignation the man, who should proffer him a bribe. Let it now be admitted as a fact. We ask, will that always be the case? The most virtuous states have become vicious. The morals of all people, in all ages, have been shockingly corrupted. The rigidly virtuous Spartans, who banished the use of gold and silver, who gloried in their poverty for centuries, at last fell a prey to luxury and corruption. The Romans, whose intense love to their country, astonishes a modern patriot, who fought the battles of the republic for three hundred years without pay, and who, as volunteers, extended her empire over Italy, were at last dissolved in luxury, courted the hand of bribery, and finally sold themselves as slaves, and prostrated their country to tyrants the most ignominious and brutal. Shall we alone boast an exemption from the general fate of mankind? Are our private and political virtues to be transmitted untainted from generation to generation, through a course of ages? Have we not already degenerated from the pure morals and disinterested patriotism of our ancestors? And are not our manners becoming soft and luxurious, and have not our vices begun to shoot? Would one venture to prophecy, that in a century from this period, we shall be a corrupt luxurious people, perhaps the close of that century would stamp this prophecy with the title of history.
The rights of representation should also be held sacred and inviolable, and for this purpose, representation should be fixed upon known and easy principles; and the constitution should make provision, that recourse should constantly be had to those principles within a very small period of years, to rectify the errors that will creep in through lapse of time, or alteration of situations. The want of fixed principles of government, and a stated regular recourse to them, have produced the dissolution of all states, whose constitutions have been transmitted to us by history.
But the legislative power must not be trusted with one assembly. A single assembly is frequently influenced by the vices, follies, passions, and prejudices of an individual. It is liable to be avaricious, and to exempt itself from the burdens it lays upon it’s constituents. It is subject to ambition, and after a series of years, will be prompted to vote itself perpetual. The long parliament in England voted itself perpetual, and thereby, for a time, destroyed the political liberty of the subject. Holland was governed by one representative assembly annually elected. They afterwards voted themselves from annual to septennial; then for life; and finally exerted the power of filling up all vacancies, without application to their constituents. The government of Holland is now a tyrannythough a republic.
The result of a single assembly will be hasty and indigested, and their judgments frequently absurd and inconsistent. There must be a second body to revise with coolness and wisdom, and to controul with firmness, independent upon the first, either for their creation, or existence. Yet the first must retain a right to a similar revision and controul over the second.
Let us now ascertain some particular principles which should be attended to, in forming the executive power.
When we recollect the nature and employment of this power, we find that it ought to be conducted with vigour and dispatch. It should be able to execute the laws without opposition, and to controul all the turbulent spirits in the state, who should infringe them. If the laws are not obeyed, the legislative power is vain, and the judicial is mere pageantry. As these laws, with their several sanctions, are the only securities of person and property, the members of the state can confide in, if they lay dormant through failure of execution, violence and oppression will erect their heads, and stalk unmolested through the land. The judicial power ought to discriminate the offender, as soon after the commission of the offence, as an impartial trial will admit; and the executive arm to inflict the punishment immediately after the criminal is ascertained. This would have an happy tendency to prevent crimes, as the commission of them would awaken the attendant idea of punishment; and the hope of an escape, which is often an inducement, would be cut off. The executive power ought therefore in these cases, to be exerted with union, vigour, and dispatch. Another duty of that power is to arrest offenders, to bring them to trial. This cannot often be done, unless secrecy and expedition are used. The want of these two requisites, will be more especially inconvenient in repressing treasons, and those more enormous offences which strike at the happiness, if not existence of the whole. Offenders of these classes do not act alone. Some number is necessary to the compleating of the crime. Cabals are formed with art, and secrecy presides over their councils; while measures the most fatal are the result, to be executed by desperation. On these men the thunder of the state should be hurled with rapidity; for if they hear it roll at a distance, their danger is over. When they gain intelligence of the process, they abscond, and wait a more favourable opportunity. If that is attended with difficulty, they destroy all the evidence of their guilt, brave government, and deride the justice and power of the state.
It has been observed likewise, that the executive power is to act as Captain-General, to marshal the militia and armies of the state, and, for her defence, to lead them on to battle. These armies should always be composed of the militia or body of the people. Standing armies are a tremendous curse to a state. In all periods in which they have existed, they have been the scourge of mankind. In this department, union, vigour, secrecy, and dispatch are more peculiarly necessary. Was one to propose a body of militia, over which two Generals, with equal authority, should have the command, he would be laughed at. Should one pretend, that the General should have no controul over his subordinate officers, either to remove them or to supply their posts, he would be pitied for his ignorance of the subject he was discussing. It is obviously necessary, that the man who calls the militia to action, and assumes the military control over them in the field, should previously know the number of his men, their equipments and residence, and the talents and tempers of the several ranks of officers, and their respective departments in the state, that he may wisely determine to whom the necessary orders are to be issued. Regular and particular returns of these requisites should be frequently made. Let it be enquired, are these returns to be made only to the legislative body, or a branch of it, which necessarily moves slow?—Is the General to go to them for information? intreat them to remove an improper officer, and give him another they shall chuse? and in fine is he to supplicate his orders from them, and constantly walk where their leading-strings shall direct his steps? If so, where are the power and force of the militia—where the union—where the dispatch and profound secrecy? Or shall these returns be made to him?—when he may see with his own eyes—be his own judge of the merit, or demerit of his officers—discern their various talents and qualifications, and employ them as the service and defense of his country demand. Besides, the legislative body or a branch of it is local—they cannot therefore personally inform themselves of these facts, but must judge upon trust. The General’s opinion will be founded upon his own observations—the officers and privates of the militia will act under his eye: and, if he has it in his power immediately to promote or disgrace them, they will be induced to noble exertions. It may further be observed here, that if the subordinate civil or military executive officers are appointed by the legislative body or a branch of it, the former will become dependent upon the latter, and the necessary independence of either the legislative or executive powers upon the other is wanting. The legislative power will have that undue influence over the executive which will amount to a controul, for the latter will be their creatures, and will fear their creators.
One further observation may be pertinent. Such is the temper of mankind, that each man will be too liable to introduce his own friends and connexions into office, without regarding the public interest. If one man or a small number appoint, their connexions will probably be introduced. If a large number appoint, all their connexions will receive the same favour. The smaller the number appointing, the more contracted are their connexions, and for that reason, there will be a greater probability of better officers, as the connexions of one man or a very small number can fill but a very few of the offices. When a small number of men have the power of appointment, or the management in any particular department, their conduct is accurately noticed. On any miscarriage or imprudence the public resentment lies with weight. All the eyes of the people are converted to a point, and produce that attention to their censure, and that fear of misbehaviour, which are the greatest security the state can have, of the wisdom and prudence of its servants. This observation will strike us, when we recollect that many a man will zealously promote an affair in a public assembly, of which he is but one of a large number, yet, at the same time, he would blush to be thought the sole author of it. For all these reasons, the supreme executive power should be rested in the hands of one or of a small number, who should have the appointment of all subordinate executive officers. Should the supreme executive officer be elected by the legislative body, there would be a dependence of the executive power upon the legislative. Should he be elected by the judicial body, there also would be a dependence. The people at large must therefore designate the person, to whom they will delegate this power. And upon the people, there ought to be a dependence of all the powers in government, for all the officers in the state are but the servants of the people.
We have not noticed the navy-department. The conducting of that department is indisputably in the supreme executive power: and we suppose, that all the observations respecting the Captain-General, apply to the Admiral.
We are next to fix upon some general rules which should govern us in forming the judicial power. This power is to be independent upon the executive and legislative. The judicial power should be a court and jury, or as they are commonly called, the Judges and the jury. The jury are the peers or equals of every man, and are to try all facts. The province of the Judges is to preside in and regulate all trials, and ascertain the law. We shall only consider the appointment of the Judges. The same power which appoints them, ought not to have the power of removing them, not even for misbehavior. That conduct only would then be deemed misbehavior which was opposed to the will of the power removing. A removal in this case for proper reasons, would not be often attainable: for to remove a man from an office, because he is not properly qualified to discharge the duties of it, is a severe censure upon that man or body of men who appointed him—and mankind do not love to censure themselves. Whoever appoints the judges, they ought not to be removable at pleasure, for they will then feel a dependence upon that man or body of men who hath the power of removal. Nor ought they to be dependent upon either the executive or legislative power for their sallaries; for if they are, that power on whom they are thus dependent, can starve them into a compliance. One of these two powers should appoint, and the other remove. The legislative will not probably appoint so good men as the executive, for reasons formerly mentioned. The former are composed of a large body of men who have a numerous train of friends and connexions, and they do not hazard their reputations, which the executive will. It has often been mentioned that where a large body of men are responsible for any measures, a regard to their reputations, and to the public opinion, will not prompt them to use that care and precaution, which such regard will prompt one or a few to make use of. Let one more observation be now introduced to confirm it. Every man has some friends and dependents who will endeavor to snatch him from the public hatred. One man has but a few comparatively, they are not numerous enough to protect him, and he falls a victim to his own misconduct. When measures are conducted by a large number, their friends and connexions are numerous and noisy—they are dispersed through the State—their clamors stifle the execrations of the people, whose groans cannot even be heard. But to resume, neither will the executive body be the most proper judge when to remove. If this body is judge, it must also be the accuser, or the legislative body, or a branch of it, must be—If the executive body complains, it will be both accuser and judge—If the complaint is preferred by the legislative body, or a branch of it, when the judges are appointed by the legislative body, then a body of men who were concerned in the appointment, must in most cases complain of the impropriety of their own appointment. Let therefore the judges be appointed by the executive body—let their salaries be independent—and let them hold their places during good behaviour—Let their misbehaviour be determinable by the legislative body—Let one branch thereof impeach, and the other judge. Upon these principles the judicial body will be independent so long as they behave well and a proper court is appointed to ascertain their mal-conduct.
The Committee afterwards proceeded to consider the Constitution framed by the Convention of this State. They have examined that Constitution with all the care the shortness of the time would admit. And they are compelled, though reluctantly to say, that some of the principles upon which it is founded, appeared to them inconsonant, not only to the natural rights of mankind, but to the fundamental condition of the original social contract, and the principles of a free republican government. In that form of government the governor appears to be the supreme executive officer, and the legislative power is in an house of representatives and senate. It may be necessary to descend to a more particular consideration of the several articles of that constitution.
The second article thereof appears exceptionable upon the principles we have already attempted to establish, because the supreme executive officer hath a seat and voice in one branch of the legislative body, and is assisting in originating and framing the laws, the Governor being entitled to a seat and voice in the Senate, and to preside in it, and may thereby have that influence in the legislative body, which the supreme executive officer ought not to have.
The third article among other things, ascertains the qualifications of the Governor, Lieutenant Governor, Senators and Representatives respecting property—The estate sufficient to qualify a man for Governor is so small, it is hardly any qualification at all. Further, the method of ascertaining the value of the estates of the officers aforesaid is vague and uncertain as it depends upon the nature and quantity of the currency, and the encrease of property, and not upon any fixed principles. This article therefore appears to be exceptionable.
The sixth article regulates the election of representatives. So many objections present themselves to this article, we are at a loss which first to mention. The representation is grossly unequal, and it is flagrantly unjust. It violates the fundamental principle of the original social contract, and introduces an unwieldy and expensive house. Representation ought to be equal upon the principles formerly mentioned. By this article any corporation, however small, may send one representative, while no corporation can send more than one, unless it has three hundred freemen. Twenty corporations (of three hundred freemen in each) containing in the whole six thousand freemen, may send forty representatives, when one corporation, which shall contain six thousand two hundred and twenty, can send but nineteen. One third of the state may send a majority of the representatives, and all the laws may be enacted by a minority—Do all the members of the state then, enjoy political liberty? Will they not be controuled by laws enacted against their consent? When we go further and find, that sixty members make an house, and that the concurrence of thirty one (which is about one twelfth of what may be the present number of representatives) is sufficient to bind the persons and properties of the members of the State, we stand amazed, and are sorry that any well disposed Americans were so inattentive to the consequences of such an arrangement.
The number of representatives is too large to debate with coolness and deliberation, the public business will be protracted to an undue length and the pay of the house is enormous. As the number of freemen in the State encreases, these inconveniences will encrease; and in a century, the house of representatives will, from their numbers, be a mere mob. Observations upon this article croud upon us, but we will dismiss it, with wishing that the mode of representation there proposed, may be candidly compared with the principles which have been already mentioned in the course of our observations upon the legislative power, and upon representation in a free republic.
The ninth article regulates the election of Senators, which we think exceptionable. As the Senators for each district will be elected by all the freemen in the state properly qualified, a trust is reposed in the people which they are unequal to. The freemen in the late province of Main, are to give in their votes for senators in the western district, and so, on the contrary. Is it supposeable that the freemen in the county of Lincoln can judge of the political merits of a senator in Berkshire? Must not the several corporations in the state, in a great measure depend upon their representatives for information? And will not the house of representatives in fact chuse the senators? That independence of the senate upon the house, which the constitution seems to have intended, is visionary, and the benefits which were expected to result from a senate, as one distinct branch of the legislative body, will not be discoverable.
The tenth article prescribes the method in which the Governor is to be elected. This method is open to, and will introduce bribery and corruption, and also originate parties and factions in the state. The Governor of Rhode Island was formerly elected in this manner, and we all know how long a late Governor there, procured his reelection by methods the most unjustifiable. Bribery was attempted in an open and flagrant manner.
The thirteenth article ascertains the authority of the general court, and by that article we find their power is limited only by the several articles of the constitution. We do not find that the rights of conscience are ascertained and defined, unless they may be thought to be in the thirty fourth article. That article we conceive to be expressed in very loose and uncertain terms. What is a religious profession and worship of God, has been disputed for sixteen hundred years, and the various sects of christians have not yet settled the dispute. What is a free exercise and enjoyment of religious worship has been, and still is, a subject of much altercation. And this free exercise and enjoyment is said to be allowed to the protestants of this state by the constitution, when we suppose it to be an unalienable right of all mankind, which no human power can wrest from them. We do not find any bill of rights either accompanying the constitution, or interwoven with it, and no attempt is made to define and secure that protection of the person and property of the members of the state, which the legislative and executive bodies cannot withhold, unless the general words of confirming the right to trial by jury, should be considered as such definition and security. We think a bill of rights ascertaining and clearly describing the rights of conscience, and that security of person and property, the supreme power of the state is bound to afford to all the members thereof, ought to be fully ratified, before, or at the same time with, the establishment of any constitution.
The fifteenth article fixes the number which shall constitute a quorum in the senate and house of representatives—We think these numbers much too small—This constitution will immediately introduce about three hundred and sixty mumbers into the house. If sixty make a quorum, the house may totally change its members six different times; and it probably will very often in the course of a long session, be composed of such a variety of members, as will retard the public business, and introduce confusion in the debates, and inconsistency in the result. Besides the number of members, whose concurrence is necessary to enact a law, is so small, that the subjects of the state will have no security, that the laws which are to control their natural rights, have the consent of a majority of the freemen. The same reasoning applies to the senate, though not so strikingly, as a quorum of that body must consist of nearly a third of the senators.
The eighteenth article describes the several powers of the Governor or the supreme executive officer. We find in comparing the several articles of the constitution, that the senate are the only court to try impeachments. We also conceive that every officer in the state ought to be amenable to such court. We think therefore that the members of that court ought never to be advisory to any officer in the state. If their advice is the result of inattention or corruption, they cannot be brought to punishment by impeachment, as they will be their own judges. Neither will the officer who pursues their advice be often, if ever, punishable, for a similar reason. To condemn this officer will be to reprobate their own advice—consequently a proper body is not formed to advise the Governor, when a sudden emergency may render advice expedient: for the senate advise, and are the court to try impeachments. We would now make one further observation, that we cannot discover in this article or in any part of the constitution that the executive power is entrusted with a check upon the legislative power, sufficient to prevent the encroachment of the latter upon the former—Without this check the legislative power will exercise the executive, and in a series of years the government will be as absolute as that of Holland.
The nineteenth article regulates the appointment of the several classes of officers. And we find that almost all the officers are appointed by the Governor and Senate. An objection formerly made occurs here. The Senate with the Governor are the court to remove these officers for misbehaviour. Those officers, in general, who are guilty of male-conduct in the execution of their office, were improper men to be appointed. Sufficient care was not taken in ascertaining their political military or moral qualifications. Will the senators therefore if they appoint, be a proper court to remove. Will not a regard to their own characters have an undue bias upon them. This objection will grow stronger, if we may suppose that the time will come when a man may procure his appointment to office by bribery. The members of that court therefore who alone can remove for misbehaviour, should not be concerned in the appointment. Besides, if one branch of the legislative body appoint the executive officers, and the same branch alone can remove them, the legislative power will acquire an undue influence over the executive.
The twenty second article describes the authority the Governor shall have in all business to be transacted by him and the Senate. The Governor by this article must be present in conducting an impeachment. He has it therefore in his power to rescue a favourite from impeachment, so long as he is Governor, by absenting himself from the Senate, whenever the impeachment is to be brought forwards.
We cannot conceive upon what principles the twenty third article ascertains the speaker of the house to be one of the three, the majority of whom have the power of granting pardons. The speaker is an officer of one branch of the legislative body, and hourly depends upon them for his existence in that character—he therefore would not probably be disposed to offend any leading party in the house, by consenting to, or denying a pardon. An undue influence might prevail and the power of pardoning be improperly exercised.—When the speaker is guilty of this improper exercise, he cannot be punished but by impeachment, and as he is commonly a favourite of a considerable party in the house, it will be difficult to procure the accusation; for his party will support him.
The judges by the twenty fourth article are to hold their places during good behaviour, but we do not find that their salaries are any where directed to be fixed. The house of representatives may therefore starve them into a state of dependence.
The twenty-eighth article determines the mode of electing and removing the delegates for Congress. It is by joint ballot of the house and Senate. These delegates should be some of the best men in the State. Their abilities and characters should be thoroughly investigated. This will be more effectually done, if they are elected by the legislative body, each branch having a right to originate or negative the choice, and removal. And we cannot conceive why they should not be elected in this manner, as well as all officers who are annually appointed with annual grants of their sallaries, as is directed in the nineteenth article. By the mode of election now excepted against, the house may choose their delegates, altho’ every Senator should vote against their choice.
The thirty-fourth article respecting liberty of conscience, we think exceptionable, but the observations necessary to be made thereon, were introduced in animadverting upon the thirteenth article.
The Committee have purposely been as concise as possible in their observations upon the Constitution proposed by the Convention of this State—Where they thought it was nonconformable to the principles of a free republican government, they have ventured to point out the nonconformity—Where they thought it was repugnant to the original social contract, they have taken the liberty to suggest that repugnance—And where they were persuaded it was founded in political injustice, they have dared to assert it.
The Committee, in obedience to the direction of this body, afterwards proceeded to delineate the general outlines of a Constitution, conformable to what have been already reported by them, as the principles of a free republican government, and as the natural rights of mankind.
They first attempted to delineate the legislative body. It has already been premised, that the legislative power is to be lodged in two bodies, composed of the representatives of the people. That representation ought to be equal. And that no law affecting the person and property of the members of the state ought to be enacted, without the consent of a majority of the members, and of those also who hold a major part of the property.
In forming the first body of legislators, let regard be had only to the representation of persons, not of property. This body we call the house of representatives. Ascertain the number of representatives. It ought not to be so large as will induce an enormous expence to government, nor too unwieldy to deliberate with coolness and attention; nor so small as to be unacquainted with the situation and circumstances of the state. One hundred will be large enough, and perhaps it may be too large. We are persuaded that any number of men exceeding that, cannot do business with such expedition and propriety a smaller number could. However let that at present be considered as the number. Let us have the number of freemen in the several counties in the state; and let these representatives be apportioned among the respective counties, in proportion to their number of freemen. The representation yet remains equal. Let the representatives for the several counties be elected in this manner. Let the several towns in the respective counties, the first wednesday in May annually, choose delegates to meet in county convention on the thursday next after the second wednesday in May annually, and there elect the representatives for the county—Let the number of delegates each town shall send to the county convention be regulated in this manner. Ascertain that town which hath the smallest number of freemen; and let that town send one. Suppose the smallest town contains fifty. All the other towns shall then send as many members as they have fifties. If after the fifties are deducted, there remain an odd number, and that number is twenty five, or more, let them send another, if less, let no notice be taken of it. We have taken a certain for an uncertain number. Here the representation is as equal as the situation of a large political society will admit. No qualification should be necessary for a representative, except residence in the county the two years preceeding his election, and the payment of taxes those years. Any freeman may be an elector who hath resided in the county the year preceeding. The same qualification is requisite for a delegate, that is required of a representative. The representatives are designed to represent the persons of the members, and therefore we do not consider a qualification in point of property necessary for them.
These represenatives shall be returned from the several parts of the county in this manner—Each county convention shall divide the county into as many districts as they send representatives, by the following rule—As we have the number of freemen in the county, and the number of county representatives, by dividing the greater by the less we have the number of freemen entitled to send one representative. Then add as many adjoining towns together as contain that number of freemen, or as near as may be, and let those towns form one district, and proceed in this manner through the county. Let a representative be chosen out of each district, and let all the representatives be elected out of the members who compose the county convention. In this house we find a proportionate representation of persons. If a law passes this house it hath the consent of a majority of the freemen; and here we may look for political honesty, probity and upright intentions to the good of the whole. Let this house therefore originate money-bills, as they will not have that inducement to extravagant liberality which an house composed of opulent men would, as the former would feel more sensibly the consequences. This county convention hath other business to do, which shall be mentioned hereafter. We shall now only observe, that this convention, upon a proper summons, is to meet again, to supply all vacancies in it’s representation, by electing other representatives out of the district in which the vacancy falls. The formation of the second body of legislators next came under consideration, which may be called the senate. In electing the members for this body, let the representation of property be attended to. The senators may be chosen most easily in a county convention, which may be called the senatorial convention. Ascertain the number of senators. Perhaps thirty three will be neither too large nor too small. Let seven more be added to the thirty three which will make forty—these seven will be wanted for another purpose to be mentioned hereafter—Apportion the whole number upon the several counties, in proportion to the state tax each county pays. Each freeman of the state, who is possessed of a certain quantity of property, may be an elector of the senators. To ascertain the value of a man’s estate by a valuation is exceedingly difficult if possible, unless he voluntarily returns a valuation—To ascertain it by oath would be laying snares for a man’s conscience, and would be a needless multiplication of oaths if another method could be devised—To fix his property at any certain sum, would be vague and uncertain, such is the fluctuation of even the best currency, and such the continual alteration of the nominal value of property—Let the state-tax assessed on each freeman’s estate decide it—That tax will generally bear a very just proportion to the nominal value of a currency, and of property. Let every freeman whose estate pays such a proportion of the state-tax that had been last assessed previous to his electing, as three pounds is to an hundred thousand pounds, be an elector—The senatorial convention may be composed of delegates from the several towns elected in this manner. Ascertain the town which contains the smallest number of freemen whose estates pay such tax, and ascertain that number. Suppose it to be thirty. Let that town send one, and let all the other towns in the county send as many delegates as they have thirties. If after the thirties are deducted, there remains an odd number, and that number is fifteen, or more, let them send another, if it is less than fifteen let no notice be taken of it. Let the delegates for the senatorial convention be chosen at the same time with the county delegates, and meet in convention the second wednesday in May annually, which is the day before the county convention is to meet—and let no county delegate be a senatorial delegate the same year—We have here a senate (deducting seven in the manner and for the purpose hereafter to be mentioned) which more peculiarly represents the property of the state; and no act will pass both branches of the legislative body, without having the consent of those members who hold a major part of the property of the state. In electing the senate in this manner, the representation will be as equal as the fluctuation of property will admit of, and it is an equal representation of property so far as the number of senators are proportioned among the several counties. Such is the distribution of intestate estates in this country, the inequality between the estates of the bulk of the property holders is so inconsiderable, and the tax necessary to qualify a man to be an elector of a senator is so moderate, it may be demonstrated, that a law which passes both branches will have the consent of those persons who hold a majority of the property in the state. No freeman should be a delegate for the senatorial convention unless his estate pays the same tax which was necessary to qualify him to elect delegates for that convention; and no freeman shall be an elector of a delegate for that convention, nor a delegate therefor, unless he has been an inhabitant of the county for the two years next preceeding. No person shall be capable of an election into the senate unless he has been an inhabitant of the county for three years next preceeding his election—His qualification in point of estate is also to be considered. Let the state tax which was assessed upon his estate for the three years next preceeding his election be upon an average, at the rate of six pounds in an hundred thousand annually.
This will be all the duty of the senatorial convention unless there should be a vacancy in the senate when it will be again convened to fill up the vacancy. These two bodies will have the execution of the legislative power; and they are composed of the necessary members to make a just proportion of taxes among the several counties. This is all the discretionary power they will have in apportioning the taxes.
Once in five years at least, the legislative body shall make a valuation for the several counties in the State, and at the same time each county shall make a county valuation, by a county convention chosen for that purpose only, by the same rules which the legislative body observed in making the State valuation—and whenever a State valuation is made, let the several county valuations be also made. The legislative body after they have proportioned the State tax among the several counties, shall also proportion the tax among the several plantations and towns, agreeably to the county valuation, to be filed in the records of the General Court for that purpose. It may be observed that this county valuation will be taken and adjusted in county convention, in which persons only are to be equally represented; and it may also be objected that property ought also to be represented for this purpose. It is answered that each man in the county will pay at least a poll tax, and therefore ought to be represented in this convention—that it is impracticable in one convention to have persons and property both represented with any degree of equality, without great intricacy—and that, where both cannot be represented without great intricacy, the representation of property should yield the preference to that of persons. The counties ought not to be compelled to pay their own representatives—if so, the counties remote from the seat of government would be at a greater charge than the other counties, which would be unjust—for they have only an equal influence in legislation with the other counties, yet they cannot use that influence but at a greater expense—They therefore labor under greater disadvantages in the enjoyment of their political liberties, than the other counties. If the remote counties enjoyed a larger proportional influence in legislation than the other counties, it would be just they should pay their own members, for the enhanced expence would tend to check this inequality of representation.
All the representatives should attend the house, if possible, and all the senators the senate. A change of faces in the course of a session retards and perplexes the public business. No man should accept of a seat in the legislative body without he intends a constant attendance upon his duty. Unavoidable accidents, necessary private business, sickness and death may, and will prevent a general attendance: but the numbers requisite to constitute a quorum of the house and senate should be so large as to admit of the absence of members, only for the reasons aforesaid. If members declined to attend their duty they should be expelled, and others chosen who would do better. Let seventy five constitute a quorum of the house, and twenty four of the senate. However no law ought to be enacted at any time, unless it has the concurrence of fifty one representatives, and seventeen senators.
We have now the legislative body (deducting seven of the senators.) Each branch hath a negative upon the other—and either branch may originate any bill or propose any amendment, except a money bill, which should be concurred or nonconcurred by the senate in the whole. The legislative body is so formed and ballanced that the laws will be made with the greatest wisdom and the best intentions; and the proper consent thereto is obtained. Each man enjoys political liberty, and his civil rights will be taken care of. And all orders of men are interested in government, will put confidence in it, and struggle for it’s support. As the county and senatorial delegates are chosen the same day throughout the State, as all the county conventions are held at the same time, and all the senatorial conventions on one day, and as these delegates are formed into conventions on a short day after their election, elections will be free, bribery will be impracticable, and party and factions will not be formed. As the senatorial conventions are held the day before the county conventions, the latter will have notice of the persons elected senators, and will not return them as representatives—the senatorial convention should after it’s first election of senators be adjourned without day, but not dissolved, and to be occasionally called together by the supreme executive officer to keep the senate full, should a senator elected decline the office, or afterwards resign, be expelled, or die. The county conventions in the same way are to keep the representation full, and also supply all vacancies in the offices they will be authorised to appoint to and elect as will be presently mentioned. By making provision in the constitution that recourse be had to these principles of representation every twenty years, by taking new lists of the freemen for that purpose, and by a new distribution of the number of representatives agreeably thereto, and of the senators in proportion to the State tax, representation will be always free and equal. These principles easily accommodate themselves to the erection of new counties and towns. Crude and hasty determinations of the house will be revised or controuled by the senate; and those views of the senate which may arise from ambition or a disregard to civil liberty will be frustrated. Government will acquire a dignity and firmness, which is the greatest security of the subject: while the people look on, and observe the conduct of their servants, and continue or withdraw their favour annually, according to their merit or demerit.
The forming of the executive power came next in course. Every freeman in the State should have a voice in this formation; for as the executive power hath no controul over property, but in pursuance of established laws, the consent of the property-holders need not be considered as necessary. Let the head of the executive power be a Governor (or in his absence, or on his death, a Lieutenant Governor) and let him be elected in the several county conventions by ballot, on the same day the representatives are chosen. Let a return be made by each man fixed upon by the several conventions, and the man who is returned by any county shall be considered as having as many votes, as that county sends representatives. Therefore the whole number of votes will be one hundred. He who hath fifty one or more votes is Governor. Let the Lieutenant-Governor be designated in the same way. This head of the supreme executive power should have a privy council, or a small select number (suppose seven) to advise with. Let him not chuse them himself—for he might then, if wickedly disposed, elect no persons who had integrity enough to controul him by their advice. Let the legislative body elect them in this manner. The house shall chuse by ballot seven out of the senate. These shall be a privy council, four of whom shall constitute a quorum. Let the Governor alone marshal the militia, and regulate the same, together with the navy, and appoint all their officers, and remove them at pleasure. The temper, use, and end of a militia and navy require it. He should likewise command the navy and militia, and have power to march the latter any where within the state. Was this territory so situated, that the militia could not be marched out of it, without entering an enemy’s country, he should have no power to march them out of the state. But the late province of Main militia must march through New-Hampshire to enter Massachusetts, and so, on the contrary. The neighbouring states are all friends and allies, united by a perpetual confederacy. Should Providence or Portsmouth be attacked suddenly, a day’s delay might be of most pernicious consequence. Was the consent of the legislative body, or a branch of it, necessary, a longer delay would be unavoidable. Still the Governor should be under a controul. Let him march the militia without the state with the advice of his privy council, and his authority be continued for ten days and no longer, unless the legislative body in the mean time prolong it. In these ten days he may convene the legislative body, and take their opinion. If his authority is not continued, the legislative body may controul him, and order the militia back. If his conduct is disapproved, his reputation, and that of his advisers is ruined. He will never venture on the measure, unless the general good requires it, and then he will be applauded. Remember the election of Governor and council is annual. But the legislative body must have a check upon the Captain General. He is best qualified to appoint his subordinate officers, but he may appoint improper ones—He has the sword, and may wish to form cabals amongst his officers to perpetuate his power—The legislative body should therefore have a power of removing any militia officer at pleasure—Each branch should have this power. The Captain General will then be effectually controuled. The Governor with his privy council may also appoint the following executive officers, viz The attorney General and the justices of the peace, who shall hold their places during good behaviour—This misbehaviour shall be determined by the senate on impeachment of the house. On this scheme a mutual check is thus far preserved in both the powers. The supreme executive officer as he is annually removeable by the people, will for that, and the other reasons formerly mentioned, probably appoint the best officers: and when he does otherwise the legislative power will remove them. The militia officers which are solely appointed, and removeable at pleasure, by the Governor, are removeable at pleasure by either branch of the legislative. Those executive officers which are removeable only for misbehaviour, the consent of the privy council, chosen by the legislative body, is first necessary to their appointment, and afterwards they are removeable by the senate, on impeachment of the house. We now want only to give the executive power a check upon the legislative, to prevent the latter from encroaching on the former, and stripping it of all it’s rights. The legislative in all states hath attempted it where this check was wanting, and have prevailed, and the freedom of the state was thereby destroyed. This attempt hath resulted from that lust of domination, which in some degree influences all men, and all bodies of men. The Governor therefore with the consent of the privy council, may negative any law, proposed to be enacted by the legislative body. The advantages which will attend the due use of this negative are, that thereby the executive power will be preserved entire—the encroachments of the legislative will be repelled, and the powers of both be properly balanced. All the business of the legislative body will be brought into one point, and subject to an impartial consideration on a regular consistent plan. As the Governor will have it in charge to state the situation of the government to the legislative body at the opening of every session, as far as his information will qualify him therefor, he will now know officially, all that has been done, with what design the laws were enacted, how far they have answered the proposed end, and what still remains to compleat the intention of the legislative body. The reasons why he will not make an improper use of his negative are—his annual election—the annual election of the privy council, by and out of the legislative body—His political character and honour are at stake—If he makes a proper use of his negative by preserving the executive powers entire, by pointing out any mistake in the laws which may escape any body of men through inattention, he will have the smiles of the people. If on the contrary, he makes an improper use of his negative, and wantonly opposes a law that is for the public good, his reputation, and that of his privy council are forfeited, and they are disgracefully tumbled from their seats. This Governor is not appointed by a King, or his ministry, nor does he receive instructions from a party of men, who are pursuing an interest diametrically opposite to the good of the state. His interest is the same with that of every man in the state; and he knows he must soon return, and sink to a level with the rest of the community.
The danger is, he will be too cautious of using his negative for the interest of the state. His fear of offending may prompt him, if he is a timid man, to yield up some parts of the executive power. The Governor should be thus qualified for his office—He shall have been an inhabitant of the state for four years next preceeding his election, and paid public taxes those years—Let the state tax assessed upon his estate those years be, upon an average, at the rate of sixteen pounds in an hundred thousand annually.
The Lieutenant Governor should have the same qualifications that are required from the Governor. In the absence out of the state of the Governor and Lieutenant Governor, or on their deaths, or while an impeachment is pending against them, or in case neither should be chosen at the annual election, let the executive power devolve upon the privy council until the office is again filled. By ascertaining in this way the qualification required from the Governor in point of property, and from the other servants of the state of whom a qualification in point of property is required, that ambition which prompts a man to aspire to any of these offices or places will benefit the state as the public tax he pays will be one criterion of his qualification. By electing the Governor in this manner, he hath the major voice of the people, and bribery or undue influence is impracticable. The privy council have also the major voice of the people, as they are chosen by a majority of the representatives: they are also selected from the senate, which it is to be presumed, will be composed of some of the best men in the state. As a further security against any inconveniency resulting from the length of time a Governor may hold the chair, no man ought to be a Governor more than three years in any six. There ought also, as soon as the circumstances of the state will admit of it, to be a gradation of officers, to qualify men for their respective departments—a rotation also of the senators will prevent any undue influence a man may acquire, by the long possession of an important office. After a period of six years let the following rules be observed. Let no man be eligible as Governor, (or Lieutenant Governor) unless he has had a seat in the senate or privy council for two years, or hath formerly been Governor or Lieutenant Governor. Let no man be eligible as senator, unless he had a seat in the house, senate, or privy council, the preceeding year—And let one fourth of the senate (which for this purpose is to include the privy council) be annually made ineligible to that rank, for two years; and let this fourth part be ascertained by lot. This lot, together with the provisions just mentioned, will introduce a rotation in the chair, privy council, senate and house: and the state will have a sufficient number of it’s members qualified for these important offices, by the gradation established. These servants of the state should have competent and honourable stipends; not so large, as will enable them to raise a fortune at the expence of the industrious classes of the people; nor so small, that a man must injure his estate by serving the public. An inadequate salary would exclude from service, all but the vainly ambitious; and the ambitious man will endeavour to repay himself by attempting measures which will hazard the constitution. These stipends should be paid out of the public treasury, and the Governor’s should be made certain upon fixed principles, otherwise the legislative body could starve him into a state of dependence.
There still remain some other officers to be elected—Let the legislative body choose the delegates for Congress, and the Receiver General and Commissary General, and let each branch have a right to originate or negative the choice.
Let the following officers, who may be considered as county officers, be thus elected—Let each county convention every three years choose the Sheriff, Coroners, and county Registers; and let that convention annually choose a county Treasurer, and a deputy Attorney General, to prosecute on behalf of the state at the court of sessions, in the absence of the Attorney General.
Let us also consider in whose hands the power of pardoning should be lodged. If the legislative body or a branch of it are entrusted with it, the same body which made or were concerned in making the law, will excuse the breach of it. This body is so numerous that most offenders will have some relation or connexion with some of it’s members, undue influence for that reason may take place, and if a pardon should be issued improperly, the public blame will fall upon such members, it would not have the weight of a feather; and no conviction upon an impeachment could follow—The house would not impeach themselves, and the senators would not condemn the senate. If this power of pardoning is lodged with the Governor and privy council, the number is so small, that all can personally inform themselves of the facts, and misinformation will be detected. Their own reputation would guard them against undue influence, for the censure of the people will hang on their necks with the weight of a mill-stone—And impeachments will stare them in the face, and conviction strike them with terror. Let the power of pardoning be therefore lodged with the Governor and privy council.
The right of convening, adjourning, proroguing, and dissolving the legislative body deserves consideration. The constitution will make provision for their convention on the last wednesday in May annually. Let each branch of the legislative, have power to adjourn itself for two days—Let the legislative body have power to adjourn or prorogue itself to any time within the year. Let the Governor and privy council have authority to convene them at pleasure, when the public business calls for it, for the assembling of the legislative body may often be necessary, previous to the day to which that body had adjourned or prorogued itself, as the legislative body when dispersed cannot assemble itself. And to prevent any attempts of their voting a continuance of their political existence, let the constitution make provision, that some time in every year, on or before the wednesday preceeding the last wednesday in May, the Governor shall dissolve them. Before that day, he shall not have power to do it, without their consent.
As the principles which should govern in forming the judicial power have been already mentioned, a few observations only, are necessary to apply those principles.
Let the judges of the common law courts, of the admiralty, and probate, and the register of probate, be appointed by the Governor and privy council; let the stipends of these judges be fixed; and let all those officers be removeable only for misbehaviour. Let the senate be the judge of that misbehaviour, on impeachment of the house.
The committee have now compleated the general out lines of a constitution, which they suppose may be conformable to the principles of a free republican government—They have not attempted the description of the less important parts of a constitution, as they naturally and obviously are determinable by attention to those principles—Neither do they exhibit these general out lines, as the only ones which can be consonant to the natural rights of mankind, to the fundamental terms of the original social contract, and to the principles of political justice; for they do not assume to themselves infallibility. To compleat the task assigned them by this body, this constitution is held up in a general view, to convince us of the practicability of enjoying a free republican government, in which our natural rights are attended to, in which the original social contract is observed, and in which political justice governs; and also to justify us in our objections to the constitution proposed by the convention of this state, which we have taken the liberty to say is, in our apprehension, in some degree deficient in those respects.
To balance a large society on republican or general laws, is a work of so great difficulty, that no human genius, however comprehensive, is perhaps able, by the mere dint of reason and reflection, to effect it. The penetrating and dispassionate judgments of many must unite in this work: experience must guide their labour: time must bring it to perfection: and the feeling of inconveniencies must correct the mistakes which they will probably fall into, in their first trials and experiments.
The plan which the preceeding observations were intended to exhibit in a general view, is now compleated. The principles of a free republican form of government have been attempted, some reasons in support of them have been mentioned, the out lines of a constitution have been delineated in conformity to them, and the objections to the form of government proposed by the general convention have been stated.
This was at least the task enjoined upon the committee, and whether it has been successfully executed, they presume not to determine. They aimed at modelling the three branches of the supreme power in such a manner, that the government might act with the greatest vigour and wisdom, and with the best intentions—They aimed that each of those branches should retain a check upon the others, sufficient to preserve it’s independence—They aimed that no member of the state should be controuled by any law, or be deprived of his property, against his consent—They aimed that all the members of the state should enjoy political liberty, and that their civil liberties should have equal care taken of them—and in fine, that they should be a free and an happy people—The committee are sensible, that the spirit of a free republican constitution, or the moving power which should give it action, ought to be political virtue, patriotism, and a just regard to the natural rights of mankind. This spirit, if wanting, can be obtained only from that Being, who infused the breath of Life into our first parent.
The committee have only further to report, that the inhabitants of the several towns who deputed delegates for this convention, be seriously advised, and solemnly exhorted, as they value the political freedom and happiness of themselves and of their posterity, to convene all the freemen of their several towns in town meeting, for this purpose regularly notified, and that they do unanimously vote their disapprobation of the constitution and form of government, framed by the convention of this state; that a regular return of the same be made to the secretary’s office, that it may there remain a grateful monument to our posterity of that consistent, impartial and persevering attachment to political, religious, and civil liberty, which actuated their fathers, and in defence of which, they bravely fought, chearfully bled, and gloriously died.
The above report being read was accepted.