Holden at IPSWICH in the
County of Essex, who were
Deputed to take into
AND FORM OF
PROPOSED BY THE
OF THE STATE OF
PRINTED AND SOLD BY JOHN MYCALL, 1778.
In Convention of Delegates from the several towns of Lynn, Salem, Danvers, Wenham, Manchester, Gloucester, Ipswich, Newbury-Port, Salisbury, Methuen, Boxford, & Topsfield, holden by adjournment at Ipswich, on the twenty-ninth day of April, one thousand seven hundred & 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- That the mode of representation proposed in the sixth article of the constitution, is not so equal a representation as can reasonably be devised.
- That therefore the mode of representation in said sixth article is exceptionable.
- That the representation proposed in said article is also exceptionable, as it will produce an [unwieldy] assembly.
- That the mode of election of Senators pointed out in the Constitution is exceptionable.
- 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.
- That the fifteenth article is exceptionable, because the numbers that constitute a quorum in the House of Representatives and Senate, are too small.
- 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,
- 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.
- 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.
- That the twenty second article is exceptionable, because the supreme executive power is not preserved distinct from, and independent of, the supreme legislative power.
- 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.
- 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.
- 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 [uncontrollable] 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 slate 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 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 conforming of a Constitution is to 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 [its] 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 labors 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 been crumbled into dust. The man who alone undertakes to form a constitution, ought to be an unimpassioned being; one enlightened mind; [biased] 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 prefessions 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. Rosseau, a learned foreigner, a citizen of Geneva, feasible 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 [control] over those of others. Fraud, circumvention, and an union of interest of some classes of people, combined with an inattention to the rights or posterity, will prevail over the principles of equity, justice and good policy. The Genevans, perhaps the most virtuous republicans now existing, thought like Rosseau. 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 canvasses, 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 among 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 [tomorrow] – but for posterity. Let Esto perpetua be [its] 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, dispersed 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 [control] 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 [control] over it, is an usurper; for no consent can be pleaded to justify the [control], 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 [control] 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, and VOLUNTARILY parted with by him. No individual, in this case, parts with his unalienable rights, the supreme power therefore cannot [control] them. Each individual also surrenders the power of [controlling] his natural alienable rights, ONLY WHEN THE GOOD 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 [control] 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 republic’s 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 [controlling] his natural rights, only when the good of the whole requires itl 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 [enforcing] 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 [controlling] 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 [control] over, the supreme power.
It has been observed, that each individual parts with the power of [controlling] 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 [control], 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
Theophilus Parsons, 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, (Newburyport, Mass.: Printed and sold by John Mycall, 1778).