Front Page Titles (by Subject) : [ANONYMOUS AND WILLIAM WHITING]: Berkshire's Grievances - American Political Writing During the Founding Era: 1760-1805, vol. 1
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
: [ANONYMOUS AND WILLIAM WHITING]: Berkshire’s Grievances - Charles S. Hyneman, American Political Writing During the Founding Era: 1760-1805, vol. 1 
American Political Writing During the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald Lutz (Indianapolis: Liberty Fund, 1983). 2 vols. Volume 1.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
[ANONYMOUS AND WILLIAM WHITING]
One consequence of the spreading demand for independence from England was the insistence of many people in western Massachusetts that the courts no longer had jurisdiction over them. This was the case, they felt, because the courts derived their existence and authority from British law, and the judges held their appointments from a governor who had been appointed by the Crown. Within a short time after the Declaration of Independence courts were effectively out of business in western Massachusetts and remained so for about four years. In June, 1777, a constitutional convention convened, and in the following March it submitted a proposed constitution for ratification by the people assembled in town meetings. The constitution was rejected during the next few weeks, with the consequence that the government which derived its authority from the colonial charter continued to function. In the fall of 1778 the Massachusetts legislature sent a committee to Pittsfield, in Berkshire County, to hear and investigate complaints. The first of these two documents makes the case for closing the courts. The second document is the response of William Whiting for the investigating committee. The first document is as printed in Oscar Handlin and Mary Handlin (editors), The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, pages 374-379.
Statement of Berkshire County Representatives, November 17, 1778
To the Honorable Committee from the General Court of Massachusetts Bay now convened at Pittsfield—
Mr. Chairman, Sir
We whose Names are underwritten indulging some Apprehensions of the Importance of Civil and religious Liberty, the destructive Nature of Tyranny and lawless power, and the absolute necessity of legal Government, to prevent Anarchy and Confusion; have taken this method to indulge our own Feelings and Sentiments respecting the important matters that have for some Time been the Subject of debate in this present Meeting—Political Disquisitions, if managed with Decency, Moderation and Candor are a good preservative against Ignorance and Servility and such a state of perfect Quietude as would endanger the Rights of Mankind united in the Bands of Society. We wish to preserve this Character in what we have now to offer in the Defence of our Constituents in opposing, in times past, the executive Courts of Justice in this County.
We wish with the least Delay to come to the Merits of the cause, and shall now proceed to make those observations on the Nature of Government which are necessary to bring into view the Apprehensions we indulge respecting the present Condition of this state, whether we have a fundamental Constitution or not; and how far we have Government duly organized and how far not: In free States the people are to be considered as the fountain of power. And the social Tie as founded in Compact. The people at large are endowed with alienable and unalienable Rights. Those which are unalienable, are those which belong to Conscience respecting the worship of God and the practice of the Christian Religion, and that of being determined or governed by the Majority in the Institution or formation of Government. The alienable are those which may be delegated for the Common good, or those which are for the common good to be parted with. It is of the unalienable Rights, particularly that of being determined or governed by the Majority on the Institution or formation of Government of which something further is necessary to be considered at this Time. That the Majority should be governed by the Minority on the first Institution of Government is not only contrary to the common apprehensions of Mankind in general, but it contradicts the common Law of Justice and benevolence.
Mankind being in a state of nature equal, the larger Number (Caeteris paribus) is of more worth than the lesser, and the common happiness is to be preferred to that of Individuals. When Men form the social Compact, for the Majority to consent to be governed by the Minority is down right popery in politicks, as submission to him who claims Infallibility, and of being the only Judge of Right and wrong, is popery in Religion. In all free Governments duly organized there is an essential Distinction to be observed between the fundamental Constitution, and Legislation. The fundamental Constitution is the Basis and ground work of Legislation, and ascertains the Rights Franchises, Immunities and Liberties of the people, How and how often officers Civil and military shall be elected by the people, and circumscribing and defining the powers of the Rulers, and so affoarding a sacred Barrier against Tyranny and Despotism. This in antient and corrupt Kingdoms when they have woke out of Slavery to some happy dawnings of Liberty, has been called a Bill of Rights, Magna Charta etc. which must be considered as imperfect Emblems of the Securities of the present grand period. Legislators stand on this foundation, and enact Laws agreeably to it. They cannot give Life to the Constitution: it is the approbation of the Majority of the people at large that gives Life and being to it. This is the foundation of Legislation that is agreeable to true Liberty, it is above the whole Legislature of a free state, it being the foundation upon which the Legislature stands. A Representative Body may form but cannot impose said Constitution upon a free people. The giving Existence to the fundamental Constitution of a free state is a Trust that cannot be delegated. For any rational person to give his vote for another person to aid and assist in forming said Constitution with a view of imposing it on the people without reserving to himself a Right of Inspection Approbation rejection or Amendment, imports, if not impiety, yet real popery in politicks. We could bring many Vouchers for this Doctrine sufficient for our present purpose is the following Extracts from a Noted Writer. In answer to that assertion of another respectable writer that ‘The bare Idea of a State without a power some where vested to alter every part of its Laws is the height of political Absurdity.’ [Introduction to Blackstone’s Commentaries, p. 97; note by the editor of Acts and Resolves] He remarks upon it, ‘A position, which I apprehend, ought to be, in some Measure limited and explained. For if it refers to those particular Regulations, which take place in Consequence of Immemorial Custom, or are enacted by positive Statute, and at the same Time, are subordinate to the fundamental Constitution from which the Legislature itself derives its Authority; it is admitted to be within the power or Trust vested in the Legislature to alter these, pro, Re nata, as the good of Society may require. But this power of Authority of the Legislature to make Alterations cannot be supposed to extend to the Infringement of those essentials Rights and previleges, which are reserved to the Members of a free state at large, as their undoubted Birthright and unalienable property. I say, in every free State there are some Liberties and previleges, which the Society has not given out of their own Hands to their Governors, not even to the Legislature: and to suppose the contrary would be the height of political absurdity; for it is saying that a state is free and not free at the same Time; or which is the same thing, that its Members are possessed of Liberties, of all which they may be divested at the will of the Legislature; that is, they enjoy them during pleasure, but can claim no property in them.
In a word nothing is more certain than that Government in the general nature of it is a Trust in behalf of the people. And there cannot be a Maxim, in my opinion, more ill grounded, than that there must be an arbitrary power lodged somewhere in every Government. If this were true, the different kinds of Government in the world would be more alike, and on a level, than they are generally supposed to be. In our own Government in particular, tho’ no one thinks with more respect of the powers which the Constitution hath vested in every branch of the Legislature; yet I must be excused in saying what is strictly true, that the whole Legislature is so far from having an absolute power, that it hath not power in several Cases that might be mentioned. For instance, their Authority does not extend to making the house of Commons perpetual, or giving that house a power to fill up their own vacancies: the house of Commons being the representatives of all the Commons of England and in that Capassity only a branch of the Legislature; and if they concur in destroying the foundation on which they themselves stand; and if they annihilate the Rights of their Constituents and claim a share in the Legislature upon any other footing than that upon which the Constitution hath given it to them; they subvert the very Trust under which alone they act, and thereby forfeit all their Authority. In short they cannot dispence with any of those essential Rights of the people which it ought to be the great object of Government as it is our Constitution in particular to preserve.’—
These reasonings tend abundantly to evince, that the whole Legislature of any state is insufficient to give Life to the fundamental Constitution of such state, it being the foundation on which they themselves stand and from which alone the Legislature derives its Authority—
May it be considered, further, that to suppose the Representative Body capable of forming and imposing this Compact or Constitution without the Inspection and Approbation Rejection or Amendment of the people at large would involve in it the greatest Absurdity. This would make them greater than the people who send them, this supposes them their own Creators, formers of the foundation upon which they themselves stand. This imparts uncontroulable Dominion over their Constituents for what should hinder them from making such a Constitution as invests them and their successors in office with unlimited Authority, if it be admitted that the Representatives are the people as to forming and imposing the fundamental Constitution of the state upon them without their Approbation and perhaps in opposition to their united sense—In this the very essence of true Liberty consists, viz in every free state the Constitution is adopted by the Majority.
It is needful to be observed that we are not to Judge of true Liberty by other Nations of the Earth, darkness has overspread the Earth, Tyranny Triumphs thro’ the world. The Day light of Liberty, only begins to dawn upon these Ends of the Earth. To measure the freedom, the Rights and privileges of the American Empire by those enjoyed by other Nations would be folly.
It is now both easy and natural to apply these reasonings to the present State of Massachusetts Bay. We think it undeniably follows from the preceeding Reasonings that the Compact in this state is not yet formed: when did the Majority of the people at large assent to such Constitution, and what is it? if the Majority of the people of this state have adopted any such fundamental Constitution it is unknown to us and we shall submit to it as we always mean to be governed by the Majority—
Nor will any of those consequences follow on this supposition, that we have no Law, or that the Honorable Council and House of Representatives are Usurpers and Tyrants. Far from it. We consider our case as very Extraordinary. We do not consider this state in all Respects as in a state of Nature tho’ destitute of such fundamental Constitution. When the powers of Government were totally dissolved in this state, we esteemed the State Congress as a necessary and useful body of Men suited to our Exigencies and sufficiently authorized to levy Taxes, raise an Army and do what was necessary for our common defence and it is Sir in this Light that we view our present Honorable Court and for these and other reasons have inculcated a careful Adherence to their orders. Time will not permit to argue this Matter any longer, for your Honors patience must have been tryed already. These have been some of the reasons we have indulged, and Sentiments we have cultivated respecting a Constitution, and for these Reasons we have been looking forward towards a new Constitution—But we must further add
That a fear of being finally deprived of a Constitution and of being thrown into confusion and divisions by delaying the formation of a new Constitution, has caused our Constituents so early and invariably to oppose the executive Courts—We have feared, we now realize those fears, that upon our submission we shall sink down into a dead Calm and never transmit to posterity a single Right nor leave them the least Knowledge of so fair an Inheritance, as we may now convey to them.—
We and our Constituents have also indulged some fears respecting some of the particular persons appointed for our Rulers least in the future Execution of Law they should execute their own private Resentments, we are willing to hope the best—
We have been ready to consider some of them as indulging an unnatural temper in vilifying and reproaching their own County but we hope they will do better for the future, and that we shall do better, and we wish to give them our confidence.—We are determined to cultivate a spirit of meekness forbearance and Love and to study the Things that shall make for peace and order.
It has appeared to us and those we are appointed to represent that in an early opposition to the executive Courts, such opposition would become general thro’ the state, which in our opinion would bring on a new Constitution without Delay. Our hope of which is now very much weakened, and such are the Dissentions of this state that we are now ready to fear we shall never obtain any other than what is called our present Constitution our Apprehensions of which have been already explained—
It is with Gratitude we reflect on the Appointment of this Honorable Committee by the General Court for the purpose of peace Reconciliation and order thro’ this County, and their impartial and faithful Execution of their Commission. We are persuaded by the Temper and Moderation exhibited that they will not embibe any prejudices against this County, by what they have seen and heared, and that they will make a Just Representation of our state to the General Court.—
To evince to your Honors our Love of peace Reconciliation and legal Government, and that we have been actuated not by personal Prejudices or Motives of Ambition, notwithstanding the powerful Reasons we have had for a Suspension of the Executive Courts we are willing to forego our own opinions and if it shall be thought best by our Constituents to submit to the establishment of the Executive Courts in this Country—
Pittsfield Valentine Rathbone
We the Subscribers Delagates from the Several Towns in the County of Berksheir Approveing of and consenting to the foregoing letter have hereunto Set our hands
My Dear Friends and Fellow Countrymen,
Impelled by the most ardent solicitude for your real felicity, prosperity and peace, I beg leave to present you with a few thoughts on the present unhappy situation of our public affairs; ernestly beseeching that you would consider them with all that candor and dispassionate attention which is absolutely necessary, when called to act on matters of the most serious importance, and which may naturally be expected from a people, who have displayed such heroic fortitude and firmness in the glorious cause of liberty, and acquired immortal honors in the field of battle.
Every sincere friend to the inhabitants of the county of Berkshire, must certainly feel the most poignant regret at the prospect of seeing all that glory which they have acquired by their noble exertions and warlike achievements, most shamefully tarnished by occasion being given for this base reflection, That their struggle has not been for the establishment of a free and equal government on the ruins of tyranny, but rather, that they might introduce a state of total anarchy and licentiousness, on the ruins of all government whatever.
The inhabitants of the county, my brethren, have already given too great occasion for this reflection. Let us now weigh the advantages and disadvantages on each side the question, in an even balance; and everyone whose mind is not debased even below that of the most uncultivated savage, must surely prefer a free and equal government to a state of anarchy and confusion. For a civilized people to live, for any considerable time, under a suspension of government, is intollerable: Nothing, therefore, short of the most weighty and important reasons, can justify the people of this county in their present opposition to law and government.
Let us therefore now chiefly attend to those arguments and objections that are urged against the due execution of law, and the powers of government; and if, on the most impartial inquiry, it shall appear dangerous to the just liberties of the people of this county to submit thereto, before a new constitution is formed, I will venture to engage, that the advocates for the immediate execution of law, shall, to a man, join its opposers in their opposition. But should those arguments and objections appear to be insufficient to justify this opposition, we have a right to expect that those persons, on their part, will immediately lay aside their opposition; or, at least, that they will not complain, should the supreme authority of the state take speedy and effectual measures to establish a due course of law in the county.
But alas! my friends, to what purpose will it be to reason with you, while you suffer yourselves to be governed entirely by passion and prejudice? In many of our public meetings and conventions, for discussing political matters, to me, it has afforded a melancholy prospect, to see so many of the people appear to pay a much greater regard to the person speaking, than to the arguments he offers. If he be of their party, they implicitly receive all that he says, for truth and sound reason, when it too often appears to be destitute of both. This, my brethren, more than the want of a new constitution, endangers your liberties, and renders you the dupes and tools of knaves and imposters. These ambitious and designing men, knowing their influence over you to be originally founded, and the continuance of it to depend, on blasting your reason, by blowing up your passions and prejudices into a continual flame; they suffer none of your old prejudices to subside, but constantly endeavor to excite new ones in your breasts, without any foundation: for they very well know, that should they give you time for serious reflection, the enchantment would be back, and all the mighty bug-bears they have raised in your minds against law and government, would vanish into mere phantoms and their influence over you, and importance in your esteem, evaporate into smoke and, “like the baseless fabrick of a vision, leave not a wreck behind.”
In this address, I pretend not to offer you any new, and cunningly devised arguments to convince you, that your present opposition against government is groundless, disreputable, and highly injurious to the peace and safety of the county. Can I only be so happy as to persuade you calmly and dispassionately to reflect on the matter, your own good sense and feelings will suggest sufficient arguments to convince you, and I shall think my labour well bestowed. But, if you are determined to rush on headlong in anarchy and licentiousness, till the arm of power shall stop your career and bring you to reflection, I shall still have the satisfaction to reflect, that I have attempted from motives of pure benevolence, to save you from misery and disgrace.
Before the present contest began, the greater part of you, my brethren, of this county, were necessarily employed in cultivating new farms; and altho’ there may not, perhaps, be a set of people in the world, who are blessed with better natural geniuses than you are; yet your particular callings and circumstances in life, did not admit of your paying that attention to matters of a political nature, which might enable you accurately to distinguish the principles of a free and equal government, from those of despotism and tyranny. While you were thus honestly employed in cultivating your new farms, you were under a necessity of contracting debts. Innumberable lawsuits were soon commenced, heavy bills of cost were taxed upon you, larger, in many instances, than the original debt: And thus you came to be cruelly oppressed, even by that law which was designed to determine and secure the rights and properties of the people. From hence originated your violent prejudices against law.
When the tyrant of Britain sent over his tools and vessels for the purpose of binding the freeborn sons of America in chains of perpetual slavery, you, my brethren, the brave sons of freedom in the county of Berkshire, fired with the most ardent zeal for liberty, left your ploughs, your farms, your families, and all that was dear at home, and bravely flew to arms. And, to your honor, it must be acknowledged, that no set of people on the continent, of equal numbers, have contributed more, in a military way, towards defeating the vile and sanguinary purposes of the British tyrant, than the inhabitants of the county of Berkshire.
When you came to have leisure to consider, who was on this side, and who on that, of the important question; you unluckily found the greater number of those gentlemen, whom you had been wont to revere as the makers of law, the judges of law, the pleaders of law, and the executors of law, were, contrary to the law of nature, reason and humanity, taking party with the tyrant, and endeavoring to fix his hateful chains upon you. This circumstance, in addition to your former prejudice against law, excited an undue jealosy and hatred against all those men who have since been appointed to administer, or have attempted to introduce, law into the county.
This gave birth to a new set of politicians who started up among you. You now withdrew your confidence from all those men of parts and learning who were, at that time, or had before been invested with any kind of civil office, and you placed it in a set of men who had nothing more to recommend them to your esteem, than their high pretentions to zeal in the cause of liberty: These men, being sensible where their great strength lay, were constantly endeavoring to keep you in a kind of ferment, and to chain you down under the most fatal prejudices against law and government. They never once informed you of this fundamental and eternal truth, that there is no other way given under heaven among men, whereby you can enjoy, and have secured to you, the inestimable blessings of liberty, peace and safety, but by resigning your alienable natural rights into the hands of the community, and submitting to be governed by such laws and rules as may be prescribed by the free representatives of the people—They have never told you that the oppressions you have heretofore suffered from the unnecessary and vexatious lawsuits that have been commenced against you, were not occasioned by any essential defect in the constitution of government you were then under, but, that they arose entirely from the advantages which a certain set of men took of the particular circumstances, in which many of the honest inhabitants of the county then were: They have not told you, that instead of applying that fatal remedy, far worse than the defeate itself, renouncing all law and government, it would have been wise and prudent for you to have inquired from what defect of law such cruel oppression might originate, and effectually to have removed[;] that they have not told you that, as experience has taught you that those men who were heretofore set over you in the law, have endeavored to enslave you, you ought to hast[en] to the arbitrary will of no set of men whatever; and that your only security herein is, to introduce, and firmly to establish, just and equal laws; laws made by yourselves, or which is the same, by your representatives; laws, by which your judges, your justices, and all your civil officers are bound, equally with yourselves, they being no other than the servants of the public. But instead of this, do they not move you to erect arbitrary despotic governments in your towns—to invest your committees, (who are bound by no laws, and have no other rule of conduct than their own arbitrary will) with unlimited power. Permit me my dear friends, in the most solemn manner, to warn you of the danger of these proceedings. Let me assure you of what everyone who is tolerably versed in the history of foreign nations, knows to be a fact; that the most tyrannical and despotic governments now on the face of the earth, have originated from almost exactly the same measures which you have adopted. And your infatuation has risen to that degree, that, unless prevented by the exertions of those friends to law and government which you now detest as your greatest enemies, it is greatly to be feared that you yourselves, or at least, your posterity, will be reduced to as abject a state of slavery as the most miserable in Turkey now are.
Let us now, my brethren, return from this long (tho I trust not altogether impertinent) digression and consider those mighty objections which are so zealously urged against the introduction of law into this county. And I think they may be substantially comprehended in these few words, viz. “We have no constitution of government. And how can we have government without a constitution, or a foundation for it to stand upon?”
Here let me call up your best and most careful attention, while we take a short view of what is termed a state of nature, and afterwards that of civil society.
In a state of nature, each individual has a right, not only to dispose of, order, and direct, his property, his person, and all his own actions, within the bounds of the law of nature, as he thinks fit, but he also has a right in himself, not only to defend, but to judge and to punish the person who shall make any assault or encroachment, either upon his person or property, without asking leave, or depending on the will of any other man, or any set of men whatever.
Now when any number of men enter into a state of society with each other, they resign into the hands of the society, the right they had in a state of nature, of disposing, directing and ordering their own persons and properties, so far as the good of the whole may require it. And as to the right of judging and punishing injuries done to any of the individuals, that is to be wholly given up to the society. Hence, it is obvious, there can be no medium between being in a state of nature, and in a state of civil society.
Again, in all societies of men, united together for mutual aid, support and defense, there exists one supreme, absolute, and rightful judge over the whole; one, who has a right, at all times, to order, direct, and dispose of the persons, actions and properties of the individuals of the community, so far as the good of the community shall require it; and this judge is no other than the majority of the whole.
The great Mr. Locke tells us, “That when men enter into a community, they must give up all the powers necessary for the purposes for which they entered into society, to the majority of the community, and this is done barely by agreeing to enter into political society; which is all the compact there is, or need be, between the individuals to make up a commonwealth. And this is that, and that only, which gives beginning to any lawful government in the world.”
Here let it be carefully observed, that when men emerge from a state of nature, and unite in society, in order to form a political government; the first step necessary is, for each individual to give up his alienable natural rights and privileges, to be ordered, directed, and disposed of, as the major part of the community shall think fit; so far as shall be necessary for the good of the whole, of which the majority must be the judges. And this must necessarily take place previous to the community’s forming any particular constitution, mode, or form of government whatever: For, to be in a state of society, so far as to be under obligation to obey the rules, and orders prescribed by the major part of the society, is one thing; and for that society to be under any particular constitution or form of government, is another. The latter is necessarily subsequent to the former, and must depend entirely on the pleasure of the supreme judge; that is, the major part of the community, who have an undoubted right to enter upon, or postpone that matter, when, and so long as they see fit; and no individual can, on that account, be justified in withdrawing their allegiance, or refusing to submit to the rules and orders of the society.
Here my brethren, let me call upon you to consider, what an absurd and ridiculous figure those men cut, who cry out vehemently for a new Constitution, while, at the same time, by refusing to make that resignation of their alienable rights which is the necessary condition on which men enter into civil society, they positively declare, that they do not even belong to the political society of the State of Massachusetts Bay.
I know some will object, that on the declaration of Independence, all civil government was annihilated; consequently, that we are under no obligation to submit to government, till we have a constitution that we approve of. To which I answer, That even admitting the declaration of Independence did actually annihilate the Constitution of the province of the Massachusetts Bay; yet it did not annihilate or materially affect, the union or compact existing among the people: For, as I have already showed, that for a people to be in a state of political society, as to be under indispensable obligation to obey the rules and orders prescribed by the major part of the society, and to be under any particular constitution or form of government, are things entirely distinct, and, that the latter is subsequent to, and wholly dependent on, the former. This, being the case, it follows, that no revolution in, or dissolution of, particular constitutions or forms of government, can absolve the members of the society from their allegiance to the major part of the community. And I can hardly conceive how it is possible for such a society to be dissolved, unless by their being dispersed abroad as the Jews are, so that the will of the major part cannot be, either known or obeyed, or by the usurpation and deadly breath of an absolute tyrant.
It is true, when the majority of a society do not act, or when their will and orders cannot be known to the members; during such suspension, the natural right of defending and protecting himself, reverts back to each individual; and on this principle only, can those salutary mobs, and necessary exertions of the people in the beginning of the present contest, be justified. But after congress and assemblies, composed of the free representatives of the people, had prescribed rules for ordering and conducting the public affairs of the community, whatever has taken place of that sort since, has generally, if not universally, been unnecessary, unwarrantable and seditious.
But should we admit for once, that on the declaration of independence, not only all modes and forms of government were dissolved, but also, that civil society was annihilated at the same time: Yet, as it plainly appears from what has been said, that previous, and in order to the forming of a constitution or mode of government, it is essentially necessary that the people enter into society, and give up their alienable natural rights, and submit to be governed by the major part of the community, I ask, with what face you can pretend to the least colour of right to give your voices in, or to say anything about, a constitution, while you utterly refuse to comply with the necessary preliminaries? This is really no less preposterous than it would be for the savages of the wilderness to run together, and take upon them, in hideous yells, to frame, and enact, a constitution and form of government for the state of Massachusetts Bay.
It is a fact which needs no proof, that whatever state the inhabitants of the Massachusetts Bay might be in at the time independence was declared, they are now in a state of civil society, and (the county of Berkshire excepted) enjoy the blessings of a free and equal government.
And now my brethren, let me ask you this very plain, tho’ pertinent and important question, Are you members of the political society of the state of Massachusetts Bay? Or are you not? If you answer in the affirmative; then let me ask you again, why do you refuse to submit to those rules which the community have prescribed? And not only this, but why, by threats and violence, do you deter the servants of the community, in this county, from redressing injuries and insults offered to others, and like the fable of the dog in the manger, neither enjoy the blessings of government yourselves, nor suffer others to enjoy them? Or how will you exculpate yourselves from the charge of being in a state of rebellion against the community?
But should you say that you do not belong to the community, that you do not mean to give up any of your natural rights till you know what constitution you are to be governed by: Then let me tell you, that you must be considered, as being, at best, in a state of nature, and that you can have no right to join, or give your voice in forming a constitution of government.
But perhaps you will say, that you do not act, in this affair, as individuals, but, as a community: For, when the minds of the inhabitants of the county were lately taken upon the expedience or inexpediency of setting up courts, there appeared to be a very great majority against it. Here let me repeat a former question: Are the inhabitants of the county of Berkshire, members of the political society of the Massachusetts Bay? Or, are they not? Your conduct, in sending members to the general court, answers this question in the affirmative. A majority of the inhabitants of the county therefore, can be of no more real avail in this matter, than a majority of any particular town, or, than even a majority of any particular family in any particular town in the county. For, it is only a major part of the community that have a right to determine matters of this kind, and they have ordered that courts of sessions be held in this county. The friends of government therefore cannot consider themselves as being, in any measure, included in this vote of the county. The truth of the fact is, that should ninety nine out of an hundred thro the county, vote against law, yet, that hundredth part would, as loyal subjects of the community, have a right to enjoy the benefits of government, and the major part of the community are under absolute obligation, therein to protect and support them. Otherwise the community could have no right to punish them, should they even commit treason against the state: For, no maxim can stand on firmer ground than this, That protection and allegiance are reciprocal: and that, where protection is wanting, allegiance is not due. Let me entreat you, my brethren, seriously to consider, how shockingly unreasonable, as well as grossly immoral your conduct is, while by threats and violence, you deprive the peaceable and loyal inhabitants of this county, of that inestimable previlege of having their grevances redressed in that ancient and equal way, of tryal by jurors, as well as of all other benefits of a free and lawful government. And all this, upon the most frivolous pretences, as I have already showed, and shall further evince in the course of these observations.
You loudly proclaim yourselves to be sons of liberty. Pray, what kind of liberty is it you contend for, against Great Britain? Does not your conduct testify against you, that you contend to the same thing, for which all tyrants contend with each other; viz: that each one may monopolize the whole empire of tyranny to himself? But lest, ere I am aware, I should catch the epidemic disease myself, and a flame of passion, begin to rage in my own breast, I will dismiss this head, and proceed to notice some other objections that are made against the introduction of law into this county.
It is said, and, no doubt has great weight with many of you, my brethren, that a set of designing men are now artfully endeavouring to bring in the old British constitution again, and thereby to reduce you to the same state of servitude which you have lavished so much blood and treasure to extricate yourselves from. This is so groundless an objection, and is fraught with such glaring absurdity and nonsense, that to attempt to confute it (as Doctor Tillotson observes in another case) is “like proving that an egg ‘is not an eliphant, or that a musket ball is not a pike staff’ ”.
The plain truth of the case is in fact no other than this,—The inhabitants of the state of Massachusetts Bay, are now in a state of some measure familiar to that which every community must pass through, while they are emerging from a state of nature to that of a free and equal government. They are, at least in a state of civil society, by virtue of a compact or agreement among the people, wherein, as hath been said, every individual hath given up into the hands of the major part of the community, his alienable natural rights, and submitted to be governed by them.
There cannot indeed with propriety, be said to be now, any constitution of government existing in this state, which is designed to be permanent, and to remain for generations to come; but we are now in a proper condition to form one, whenever the major part of the community shall think proper to enter upon so important an undertaking: And then, every individual must submit to such a constitution as the majority shall agree to; though, the larger that majority, the happier it will be.
Now, let me ask, what similarity is there between our present government, and that under the old British constitution while it was in force in its original latitude? In that, the king of Great Britain held the reins of government fast in his iron hand,—he appointed our governor, lieutenant governor, and secretary: The governor appointed all our military, and had the greatest share in appointing our civil officers: He always took care to appoint such as were friends, not to the people, but to the prerogative: He had a negative on all our laws and other acts of the general court; and as his dependence was upon the crown, and not the people, his constant endeavour was to please the king by enslaving the people. At present, the community annually choose a house of representatives, the house choose a council, and these two branches exercise the powers of government.
Now, should we grant the utmost that even prejudice and envy can suggest,—That there are men in the state, wicked and safe enough to enslave the people, if they had it in their power; I defy anyone to show how it is possible for them, in our present circumstances, to effect it,—But oh! not quite so fast: The British charter here falls in our way, over which, it seems, we are like to brake our shins.
Alas! what a surprising piece of sacred old parchment; for which we have heretofore had so great anxiety, lest it should be curtailed or disannulled; but now, like the manna in the wilderness, by being kept too long, it breeds worms and stinks!
It is true, we have solemnly declared ourselves independent of the king and parliament of Great Britain, and renounced their authority forever. We have, long since passed a fatal rolling bill, which has gone through the state, and crushed every officer who held his commission, by virtue of the British charter, to nothing. As we annually choose a house of representatives, and they, a council; they are sufficiently apprized that if they do not choose the most fit and proper men to that important trust, they will not be elected themselves again. When a council are thus chosen, there is now no governor to negative the choice. Before they are admitted to their seats, they all take a solemn oath, to be true to the people of the state, and to support and defend them against George the third, king of Great Britain, and all his emissiaries. This council and house of representatives, make all our laws, appoint all our public officers, and transact all our important publick business. And I must confess, I cannot conceive how it is possible to have a legislative body more entirely dependent on the people, or further removed, even from a possibility of enslaving them.
But still, we must be in danger of being enslaved by the old British constitution. This vile charter still lurks at the bottom; and our general assembly meet, and the council are chose on the same day that the charter directs, and in many other important matters of a like nature, the charter is still conformed to, & etc. & etc. & etc. But indeed, I am quite out of breath in reciting these insignificant scarecrows.
The truth of the matter is this: On the declaration of independence, the inhabitants of this state, although they considered themselves as being entirely absolved from their allegiance to the powers of Great Britain, and from being any further held by the old constitution than they chose to adopt it; yet they did not think themselves absolved from that mutual compact or union they were in with each other as a civil society, but still considered themselves as being under the government and direction of the major part of the community. Now, in order that society might exercise that degree of government which the peace and safety of the community required, it was also necessary that some particular rule, or form of government should be adopted. Whatever modes and forms therefore, they had been accustomed to from the old charter, and still found would be useful and expedient for a free and independent society, they surely would not be so childish as to deny themselves the benefit of, merely because they were contained in the British charter. And here, my bretheren, will you be so kind as seriously to consider, for once, what strange inconsistencies you suffer your prejudices to drive you into? Most of you who are now so terribly alarmed at the apparition of our old defunct charter, are, at the same time, charmed with the constitution of Connecticut, and long to be under it; notwithstanding their government is built upon, and invariably conformed to, a British charter; a charter, too, that was drawn up under the auspice of that impious tyrant, Charles the second, whilst our monster of a thing, which, though dead, yet belcheth forth the most dreadful terrors was formed by those amiable royal characters, William and Mary, who drove out that bigotted popish tyrant, James the second, and restored liberty to the then respectable kingdom, of Great Britain. But dust to dust, earth to earth, ashes to ashes, without either hope or fear of its resurrection; let us dismiss this frightful corpse of a charter.
But I must not yet close my address; for the din of a new constitution continually rings in my ears.
For myself, I most heartily wish that we had now such a constitution of government and bill of rights firmly established, as would secure to us and our posterity, all the benefits of a free and equal government, forever: And I will pledge myself that the small abilities and influence I possess, shall be exerted to procure them as soon as possible. At the same time I am fully persuaded that our violent opposition to a due execution of law in this county, is not only groundless, unjust, and exceedingly detrimental to the peace, safety, and welfare of the county; but, will prove the greatest impediment to our ever obtaining such a constitution as we shall be pleased with; for, we hereby lose our influence in the state. We are now considered by the greater part of the people in the state, as being in a kind of political delirium; accordingly they pay but little regard to us. Besides, as hath been observed, we cannot, in justice, claim any right to a share in forming a constitution, so long as, by refusing to submit to the majority, we deny that we belong to the civil community.
Neither do I apprehend it will at all expedite the business of a constitution to threaten the people of this state with a revolt, in case they do not immediately set about a new constitution. Suppose the state to which we apply for their protecting wing, should ask us, why we desire to forsake our parent state and join with strangers? Must not our answer be, because the ancient and extensive state of the Massachusetts Bay are so arbitrary and tyranical, that they will not submit to be governed agreeable to the capricious humor of the county of Berkshire. And will they, knowing our political character, be fond of taking us into their bosoms? Will they not rather reject our suit, under these circumstances, from a just apprehension that we may prove to their community, like the dead fly in the apothecaries precious ointment?
But the word constitution, like great is Diana, still sounds in my head. Here, therefore, I must observe, that most of the people are so carried away with this word, as though some magick was contained in it, and under sanction thereof, oppose all law and government are, at the same time, totally ignorant of what is meant by the term, constitution: They have affixed an idea to the word, which it by no means admits of. Here then, let us briefly inquire what is meant by a bill of rights, and constitution of government?
And first, negatively. A bill of rights and constitution of government have no immediate connexion with, or influence in, altering or amending any laws, usages, customs, or modes of proceeding in the general distribution of law among the people as, for instance,—altering laws for the collection of debts, fee bills, regulating the recording of deeds, or transfering the business from county registers to town clerks & c. There is the same door open now for the redress of grievances of this kind (if any such you have) which there will be after the establishment of a new constitution; for these are matters, with which that has nothing to do.
Again, a new constitution will not in the least alter the present mode of proceeding in the different courts of law that are now held in the state. For these are all matters that have no immediate connexion, with a constitution of government.
In order therefore, to a better understanding of this matter, let it be observed, that all mankind are born equally free, and that, by nature, no one is above another;—that when men enter into civil society, they give up, into the hands of the society, many of their natural rights and liberties, to be ordered and directed by the will of the society, which, in a state of nature, could be controlled only by their own wills. Men also possess other natural rights which they cannot divest themselves of, nor give the controul of to any power under heaven. These are called the unalienable rights of mankind; and are chiefly the rights of conscience, right of protection & c. Now the design of a bill of rights is to ascertain and clearly describe the rights of conscience, and that security of person and property which the supreme power of the state is bound to protect every individual in the enjoyment of.
A constitution of government is that which points out and determines the several branches of authority that shall exist in the state, as, legislative, judicial, and executive, in what manner they shall be appointed,—the kind, and degree of power each branch shall be vested with, and how far they shall be dependent, or independent on each other: It also includes the establishment of general rules for the government of the militia and navy departments; and the whole to be fixed and unalterable, (unless by the same power which first gave it being) for preventing usurpations, and for the security of future generations; and, as I said before, without any immediate respect to the distribution of law and justice among the people, any otherwise, than as from a tree that grows on a good root, we naturally look for good fruit.
I am sensible that the discription here given of a bill of rights, and constitution of government, is general and concise. All I design by it, is to show that if we had such a bill of rights, and constitution of government now established, this would not remove any of those supposed grievances which I have yet heard complained of in the country of Berkshire; unless the present mode of appointing civil officers be considered as a grievance. And I confess, I see no reason why the inhabitants of this county should be more grieved at this, than the inhabitants of any other part of the state. Should it be thought best to establish some other mode of appointing these officers, this will, doubtless, be duly attended to, whenever the matter of forming a new constitution is taken up. In the meantime, how unbecoming, and arrogant is it, for the inhabitants of this single infant county, to proclaim, as they do by their conduct, that unless the state will immediately comply with their disposition, and form, and content to such a constitution, in all respects, as they approve of, they will continue their revolt from the community? Pray, my brethren, attend seriously to this matter. The business of forming a constitution, is a most weighty and important undertaking and ought not to be gone into by men whose minds are fired with passion, or influenced by prejudice. In a matter of such moment, and in a state so extensive as this, there will necessarily be a great variety of sentiment and opinions: And every particular town and county in the state who differ in sentiment in this important matter, will have, one, as good a right as another, to insist on all the other parts of the community conforming to their plan of government, and to refuse submission to the laws of the state, unless their dispositions are immediately complied with.
And now, my brethren, only consider, how shocking would be the consequences, should your example be followed by all the towns and counties in this state, and through the continent! Instead of being the United States of America we should be (I had almost said) the infinite number of jarring, disunited factions of America! Our different towns and counties would soon become fields of blood, and exhibit the most dreadful scenes of tumult, violence, and destruction! and our common enemy would have little more to do, than to march through the country and seize on their prey!
Again; is not this the language of our conduct, that the state of Massachusetts Bay is composed of a set of knaves, on the one hand, who are leading the people into slavery, and of fools on the other, who (the county of Berkshire excepted) are suffering themselves to be led by the nose into their snare? And can it be expected that the other counties in the state will feel themselves very much obliged by such a compliment?
As I said before, so say I now again, no person more ardently desires a constitution that shall be acceptable to this county, and to the state in general, than myself: And it grieves me to my heart to meet with such fatal obsticles in the way of it as have now been mentioned. For, as hath been observed, there are, in the state, a great variety of opinions respecting the form of a constitution for this state, as well as to the most proper time for taking up this important business. We shall therefore, never be able to obtain a form of government, till we bring ourselves to such a disposition, that after comparing all those different opinions together, we shall be willing to submit to one that shall be a kind of medium between the whole, and conformable (as near as possible) to the sentiments of the whole. And it is too apparent, that there is not, at present, such a disposition in the inhabitants of this county.
And now, my brethren, from the foregoing observations, I think it evident to a demonstration, that the common cry in this county, that we have no foundation of government, is altogether groundless. For, even admitting that we have no particular constitution yet, it hath been shown, that such a constitution is not so essential to government, that there can be no foundation of government without it; but, on the contrary, that a compact or union among the people, by which they agree to submit themselves to be governed by the major part of the community, is itself, a sufficient and substantial foundation of government. And this being the case, how surprising is your conduct, that while you protest to belong to the community, by joining with it in making all the laws and rules for the government thereof, by your representatives, you, at the same time, refuse to submit to those very laws and rules; because, say you, we have no foundation of government. Although the great Mr. Locke tells you, and common sense tells you the same, that this, and this only, is that which can lay a foundation for any lawful government in the world.
I have shown, that the common cry of danger of being enslaved, and again brought under the British yoke of bondage, by introducing (for present convenience) the old constitution, as now practiced upon, is perfectly idle and ridiculous. I have shown that our conduct, in refusing to submit to law, till we have a new form of government established, instead of bringing forward, will have a direct and powerful tendency to retard and embarrass, that desirable and important object.—I have shown, that the people of this county, who at present oppose the due execution of law, have entirely mistook the true meaning and import of the words, constitution and form of government. I have shown, that for a people to give up their alienable natural rights, and to agree to be directed by the major part of the society, so far as the good of the whole shall require it, is the only foundation of lawful government; and that this is absolutely necessary, previous to their forming any particular mode of government; and therefore, that as the people of this county refuse to comply with these preliminaries, they do thereby exclude themselves from all just rights to give their voices in forming a constitution.
Notwithstanding the pains I have taken to set these matters in a just point of view, it will be to no good purpose, so long as the people are determined that they will retain all the rights of a state of nature. Let me tell you, my brethren, you cannot retain these rights, and at the same time enjoy the protection of society. It is therefore high time to away with these shocking inconsistencies, in which you have gone on for several years past—pretending to belong to the community of Massachusetts Bay by sending representatives, or rather spies, to the general court, and, at the same time, refusing to obey those laws and rules which they prescribe, unless in some particular instances, wherein they happen to coincide with your fancies! And here I can’t but take notice, how shamefully that ancient maxim, vox populi est vox Dei (the voice of the people is the voice of God) has been prostituted in this county. When the major part of a free and independent community, by their representatives, declare to the individual members, and the world, their acts and resolutions, this being considered as the greatest power on earth, nothing can more fitly resemble the voice of God. But when a small number of individuals, who ought to be members of the society, inflamed with passion (if not with strong drink) collect together for the avowed purpose of opposing the true vox populi, let any one say whether their voice is not rather that of blasphemy and treason, than god like.
I shall close my address by repeating my most serious advice to you to act a part more consistent. And as you are now erecting little democracies in several of your towns, you ought to withdraw your representatives from the general assembly of the Massachusetts Bay; for it is highly unreasonable they should sit there as spies. You ought to send them as ambassadors, or commissioners plenipotentiary, and in that character they ought to be received, if received at all, and not as representatives. You ought to send the like officers to the American Congress, and to have your independence confirmed by that august body, before you proceed further in the exercise of your novel governments; otherwise, it is more than possible you may meet with difficulty: For, should you compel anyone to submit to your assumed authority, he will have a right to demand satisfaction, and the state is bound to see him redressed. And you may be assured that the supreme authority of the state will not be easily convinced that those trifling objections against law, which are so easily confused, are sufficient to justify you in setting up independent governments in your several towns, unless you can obtain a ratification of your independence from Congress, which, I dare say, in your most extravagant excursions of fancy, you never once thought of.
And now, my brethren, before I take my leave of you; permit me, in the most serious manner, to assure you, that I wish for nothing more ardently, than for the liberty, peace and safety of this county, and that these blessings may be secured to you and your posterity, on the most permanent foundation, even such as the gates of hell shall never be able to prevail against. If anything has occurred in the course of the foregoing observations which may favor too much of harshness and severity, for this I ask your pardon, and assure you, I meant no reflection. I can truly say, I have had nothing more in view, in writing this address than the good of the county.
As to those people who are so violently attached to their licentious principles, as to fly into a rage with every one who, by rational arguments, attempts their reformation, I must consider them in the same light with my other unhappy patients, who, labouring under phrensys and deliriums, will often strike at the friendly hand which holds out to them the specific medicine which is designed for their cure.
I am, gentlemen, notwithstanding I have been so long despised and rejected by you, your sincere friend,