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NO. XII. - John Adams, The Works of John Adams, vol. 4 (Novanglus, Thoughts on Government, Defence of the Constitution) 
The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams (Boston: Little, Brown and Co., 1856). 10 volumes. Vol. 4.
Part of: The Works of John Adams, 10 vols.
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We now come to Jersey and Guernsey, which Massachusettensis says, “are no part of the realm of England, nor are they represented in parliament, but are subject to its authority.” A little knowledge of this subject will do us no harm; and, as soon as we shall acquire it, we shall be satisfied how these islands came to be subject to the authority of parliament. It is either upon the principle that the king is absolute there, and has a right to make laws for them by his mere will, and, therefore, may express his will by an act of parliament, or an edict, at his pleasure; or it is an usurpation. If it is an usurpation, it ought not to be a precedent for the colonies; but it ought to be reformed, and they ought to be incorporated into the realm by act of parliament and their own act. Their situation is no objection to this. Ours is an insurmountable obstacle.
Thus, we see, that in every instance which can be found, the observation proves to be true, that, by the common law, the laws of England, the authority of parliament, and the limits of the realm, were confined within seas. That the kings of England had frequently foreign dominions, some by conquest, some by marriage, and some by descent. But, in all those cases, the kings were either absolute in those dominions, or bound to govern them according to their own respective laws, and by their own legislative and executive councils. That the laws of England did not extend there, and the English parliament pretended no jurisdiction there, nor claimed any right to control the king in his government of those dominions. And, from this extensive survey of all the foregoing cases, there results a confirmation of what has been so often said, that there is no provision in the common law, in English precedents, in the English government or constitution, made for the case of the colonies. It is not a conquered, but a discovered country. It came not to the king by descent, but was explored by the settlers. It came not by marriage to the king, but was purchased by the settlers of the savages. It was not granted by the king of his grace, but was dearly, very dearly earned by the planters, in the labor, blood, and treasure which they expended to subdue it to cultivation. It stands upon no grounds, then, of law or policy, but what are found in the law of nature, and their express contracts in their charters, and their implied contracts in the commissions to governors and terms of settlement.
The cases of Chester and Durham, counties palatine within the realm, shall conclude this fatiguing ramble. Chester was an earldom and a county; and in the 21st year of King Richard II. ad 1397, it was, by an act of parliament, erected into a principality, and several castles and towns were annexed to it, saving to the king the rights of his crown. This was a county palatine, and had jura regalia before this erection of it into a principality. But the statute which made it a principality, was again repealed by 1 Henry IV. c. 3, and in 1399, by the 1 Henry IV. c. 18. Grievous complaints were made to the king, in parliament, of murders, manslaughters, robberies, batteries, riots, &c. done by people of the county of Chester in divers counties of England. For remedy of which it is enacted, “that if any person of the county of Chester commit any murder or felony in any place out of that county, process shall be made against him by the common law, till the exigent, in the county where such murder or felony was done; and if he flee into the county of Chester, and be outlawed and put in exigent for such murder or felony, the same outlawry or exigent shall be certified to the officers and ministers of the same county of Chester, and the same felon shall be taken, his lands and goods within that county shall be seized as forfeit into the hands of the prince, or of him that shall be lord of the same county of Chester for the time, and the king shall have the year and day, and the waste; and the other lands and goods of such felon, out of said county, shall remain wholly to the king, &c. as forfeit.” And a similar provision, in case of battery or trespass, &c.
Considering the great seal of England and the process of the king’s courts did not run into Chester, it was natural that malefactors should take refuge there, and escape punishment, and, therefore, a statute like this was of indispensable necessity; and, afterwards, in 1535, another statute was made, 27 Henry VIII. c. 5, for the making of justices of the peace within Chester, &c. It recites, “the king, considering the manifold robberies, murders, thefts, trespasses, riots, routs, embraceries, maintenances, oppressions, ruptures of his peace, &c., which have been daily done within his county palatine of Chester, &c., by reason that common justice hath not been indifferently ministered there, like and in such form as it is in other places of this his realm, by reason whereof the said crimes have remained unpunished; for redress whereof, and to the intent that one order of law should be had, the king is empowered to constitute justices of peace, quorum, and gaol delivery in Chester,” &c.
By the 32 Henry VIII. c. 43, another act was made concerning the county palatine of Chester, for shire days.
These three acts soon excited discontent in Chester. They had enjoyed an exemption from the king’s English courts, legislative and executive, and they had no representatives in the English parliament, and, therefore, they thought it a violation of their rights, to be subjected even to those three statutes, as reasonable and absolutely necessary as they appear to have been. And, accordingly, we find, in 1542, 34 and 35 Henry VIII. c. 13, a zealous petition to be represented in parliament, and an act was made for making of knights and burgesses within the county and city of Chester. It recites a part of the petition to the king, from the inhabitants of Chester, stating, “that the county palatine had been excluded from parliament, to have any knights and burgesses there; by reason whereof, the said inhabitants have hitherto sustained manifold disherisons, losses, and damages, as well in their lands, goods, and bodies, as in the good civil and politic governance and maintenance of the commonwealth of their said country; and, forasmuch as the said inhabitants have always hitherto been bound by the acts and statutes, made by your highness and progenitors in said court,” (meaning when expressly named, not otherwise,) “as far forth as other counties, cities, and boroughs, which have had knights and burgesses, and yet have had neither knight nor burgess there, for the said county palatine; the said inhabitants, for lack thereof, have been oftentimes touched and grieved with acts and statutes made within the said court, as well derogatory unto the most ancient jurisdictions, liberties, and privileges of your said county palatine, as prejudicial unto the common weal, quietness, rest, and peace of your subjects, &c.” For remedy whereof, two knights of the shire and two burgesses for the city are established.
I have before recited all the acts of parliament which were ever made to meddle with Chester, except the 51 Henry III. stat. 5, in 1266, which only provides that the justices of Chester and other bailiffs shall be answerable in the exchequer, for wards, escheats, and other bailiwicks; yet Chester was never severed from the crown or realm of England, nor ever expressly exempted from the authority of parliament; yet, as they had generally enjoyed an exemption from the exercise of the authority of parliament, we see how soon they complain of it as grievous, and claim a representation as a right; and we see how readily it was granted. America, on the contrary, is not in the realm; never was subject to the authority of parliament by any principle of law; is so far from Great Britain that she never can be represented; yet, she is to be bound in all cases whatsoever!
The first statute which appears in which Durham is named, is 27 Henry VIII. c. 24, § 21; Cuthbert, Bishop of Durham, and his successors, and their temporal chancellor of the county palatine of Durham, are made justices of the peace. The next is 31 Elizabeth, c. 9, and recites, that “Durham is, and of long time hath been, an ancient county palatine, in which the Queen’s writ hath not, nor yet doth run.” It enacts that a writ of proclamation upon an exigent against any person dwelling in the bishopric shall run there for the future. And § 5 confirms all the other liberties of the bishop and his officers.
And after this, we find no other mention of that bishopric in any statute until 25 Charles II. c. 9. This statute recites, “whereas, the inhabitants of the county palatine of Durham have not hitherto had the liberty and privilege of electing and sending any knights and burgesses to the high court of parliament, although the inhabitants of the said county palatine are liable to all payments, rates, and subsidies granted by parliament, equally with the inhabitants of other counties, cities, and boroughs, in this kingdom, who have their knights and burgesses in the parliament, and are therefore concerned equally with others, the inhabitants of this kingdom, to have knights and burgesses in the said high court of parliament, of their own election, to represent the condition of their county, as the inhabitants of other counties, cities, and boroughs of this kingdom have.” It enacts two knights for the county, and two burgesses for the city. Here, it should be observed, that, although they acknowledge that they had been liable to all rates, &c. granted by parliament, yet none had actually been laid upon them before this statute.
Massachusettensis then comes to the first charter of this province; and he tells us, that in it we shall find irresistible evidence, that our being a part of the empire, subject to the supreme authority of the state, bound by its laws, and subject to its protection, were the very terms and conditions by which our ancestors held their lands and settled the province. This is roundly and warmly said, but there is more zeal in it than knowledge. As to our being part of the empire, it could not be the British empire, as it is called, because that was not then in being, but was created seventy or eighty years afterwards. It must be the English empire, then; but the nation was not then polite enough to have introduced into the language of the law, or common parlance, any such phrase or idea. Rome never introduced the terms Roman empire until the tragedy of her freedom was completed. Before that, it was only the republic or the city. In the same manner, the realm, or the kingdom, or the dominions of the king, were the fashionable style in the age of the first charter. As to being subject to the supreme authority of the state, the prince who granted that charter thought it resided in himself, without any such troublesome tumults as lords and commons; and before the granting that charter, had dissolved his parliament, and determined never to call another, but to govern without. It is not very likely, then, that he intended our ancestors should be governed by parliament, or bound by its laws. As to being subject to its protection, we may guess what ideas king and parliament had of that, by the protection they actually afforded to our ancestors. Not one farthing was ever voted or given by the king or his parliament, or any one resolution taken about them. As to holding their lands, surely they did not hold their lands of lords and commons. If they agreed to hold their lands of the king, this did not subject them to English lords and commons, any more than the inhabitants of Scotland, holding their lands of the same king, subjected them. But there is not a word about the empire, the supreme authority of the state, being bound by its laws, or obliged for its protection in that whole charter. But “our charter is in the royal style.” What then? Is that the parliamentary style? The style is this: “Charles, by the grace of God, King of England, Scotland, France, and Ireland, Defender of the Faith,” &c. Now, in which capacity did he grant that charter; as King of France, or Ireland, or Scotland, or England? He governed England by one parliament, Scotland by another. Which parliament were we to be governed by? And Ireland by a third; and it might as well be reasoned, that America was to be governed by the Irish parliament, as by the English. But it was granted “under the great seal of England.” True; but this seal runneth not out of the realm, except to mandatory writs, and when our charter was given, it was never intended to go out of the realm. The charter and the corporation were intended to abide and remain within the realm, and be like other corporations there. But this affair of the seal is a mere piece of imposition.
In Moore’s Reports, in the case of the union of the realm of Scotland with England, it is resolved by the judges, that “the seal is alterable by the king at his pleasure, and he might make one seal for both kingdoms (of England and Scotland); for seals, coin, and leagues, are of absolute prerogative to the king without parliament, not restrained to any assent of the people;” and in determining how far the great seal doth command out of England, they made this distinction: “That the great seal was current for remedials, which groweth on complaint of the subject, and thereupon writs are addressed under the great seal of England; which writs are limited, their precinct to be within the places of the jurisdiction of the court that was to give the redress of the wrong. And therefore writs are not to go into Ireland, or the Isles, nor Wales, nor the counties palatine, because the king’s courts here have not power to hold pleas of lands or things there. But the great seal hath a power preceptory to the person, which power extendeth to any place where the person may be found,” &c. This authority plainly shows, that the great seal of England has no more authority out of the realm, except to mandatory or preceptory writs, (and surely the first charter was no preceptory writ,) than the privy seal, or the great seal of Scotland, or no seal at all. In truth, the seal and charter were intended to remain within the realm, and be of force to a corporation there; but the moment it was transferred to New England, it lost all its legal force, by the common law of England; and as this translation of it was acquiesced in by all parties, it might well be considered as good evidence of a contract between the parties, and in no other light; but not a whit the better or stronger for being under the great seal of England. But “the grants are made by the king, for his heirs and successors.” What then? So the Scots held their lands of him who was then king of England, his heirs and successors, and were bound to allegiance to him, his heirs and successors; but it did not follow from thence that the Scots were subject to the English parliament. So the inhabitants of Aquitain, for ten descents, held their lands, and were tied by allegiance to him who was king of England, his heirs and successors, but were under no subjection to English lords and commons.
Heirs and successors of the king are supposed to be the same persons, and are used as synonymous words in the English law. There is no positive artificial provision made by our laws, or the British constitution, for revolutions. All our positive laws suppose that the royal office will descend to the eldest branch of the male line, or, in default of that, to the eldest female, &c., forever, and that the succession will not be broken. It is true that nature, necessity, and the great principles of self-preservation, have often overruled the succession. But this was done without any positive instruction of law. Therefore, the grants being by the king, for his heirs and successors, and the tenures being of the king, his heirs and successors, and the reservation being to the king, his heirs and successors, are so far from proving that we were to be part of an empire, as one state, subject to the supreme authority of the English or British state, and subject to its protection, that they do not so much as prove that we are annexed to the English crown. And all the subtilty of the writers on the side of the ministry, has never yet proved that America is so much as annexed to the crown, much less to the realm. “It is apparent the king acted in his royal capacity, as king of England.” This I deny. The laws of England gave him no authority to grant any territory out of the realm. Besides, there is no color for his thinking that he acted in that capacity, but his using the great seal of England; but if the king is absolute in the affair of the seal, and may make or use any seal that he pleases, his using that seal which had been commonly used in England is no certain proof that he acted as king of England; for it is plain he might have used the English seal in the government of Scotland, and in that case it will not be pretended that he would have acted in his royal capacity as king of England. But his acting as king of England “necessarily supposes the territory granted to be a part of the English dominions, and holden of the crown of England.” Here is the word “dominions” systematically introduced instead of the word “realm.” There was no English dominions but the realm. And I say, that America was not any part of the English realm or dominions. And therefore, when the king granted it, he could not act as king of England, by the laws of England. As to the “territory being holden of the crown, there is no such thing in nature or art.” Lands are holden according to the original notices of feuds, of the natural person of the lord. Holding lands, in feudal language, means no more than the relation between lord and tenant. The reciprocal duties of these are all personal. Homage, fealty, &c., and all other services, are personal to the lord; protection, &c. is personal to the tenant. And therefore no homage, fealty, or other services, can ever be rendered to the body politic, the political capacity, which is not corporated, but only a frame in the mind, an idea. No lands here, or in England, are held of the crown, meaning by it the political capacity; they are all held of the royal person, the natural person of the king. Holding lands, &c. of the crown, is an impropriety of expression; but it is often used; and when it is, it can have no other sensible meaning than this, that we hold lands of that person, whoever he is, who wears the crown; the law supposes he will be a right, natural heir of the present king forever.
Massachusettensis then produces a quotation from the first charter, to prove several points. It is needless to repeat the whole; but the parts chiefly relied on are italicized. It makes the company a body politic in fact and name, &c., and enables it “to sue and be sued.” Then the writer asks, “whether this looks like a distinct state or independent empire?” I answer, no. And that it is plain and uncontroverted, that the first charter was intended only to erect a corporation within the realm; and the governor and company were to reside within the realm; and their general courts were to be held there. Their agents, deputies, and servants only were to come to America. And if this had taken place, nobody ever doubted but they would have been subject to parliament. But this intention was not regarded on either side; and the company came over to America, and brought their charter with them. And as soon as they arrived here, they got out of the English realm, dominions, state, empire, call it by what name you will, and out of the legal jurisdiction of parliament. The king might, by his writ or proclamation, have commanded them to return; but he did not.
NOTE TO THE EDITION OF 1819.
Hostilities at Lexington, between Great Britain and her colonies, commenced on the nineteenth of April, two days succeeding the publication of this last essay. Several others were written, and sent to the printers of the Boston Gazette, which were probably lost amidst the confusion occasioned by that event.
WORKS ON GOVERNMENT.
In times of social revolution, two descriptions of human power are forced into extraordinary activity. One of these is particularly directed to the work of demolition of the old, the other to that of reconstruction of the new, forms of government. Most frequently these are not found existing in one and the same set of persons; and the first class of agents, after having accomplished its work, yields its place to the second, which, in turn, performs that for which it is peculiarly fitted. “L’esprit d’organisation,” says a modern French writer,1 “le goût d’une régulière discipline, le don du commandement raisonnable, ne sont pas des qualités propres à ceux qui ont jeté le trouble dans la société. D’ailleurs, aux rares génies qui reçoivent cette mission, on ne donne pas le pouvoir, ils le prennent.”
The share which Mr. Adams had in breaking up the system of colonial dependence has been already shown in the preceding division of this work. It is intended in this to present, in one clear and connected view, the system upon which he acted in reorganizing society upon the basis under which the country has thus far prospered. It will be perceived that, from first to last, from the year 1775, before the Declaration of Independence, down to the year 1793, when the present constitution had become fully established, the principles upon which he acted and counselled remain substantially the same. What these really were; how far they were adopted and incorporated into the institutions of the separate and of the United States; and how far they may be entitled to be hereafter received as sound, the present corrected form of publication will probably furnish the materials of deciding. Upon them, the reputation of the author with posterity must ultimately rest, far more than upon his active career. The system, though developed to serve an immediate purpose, is based upon a close examination of human nature, in every phase of its republican experience. Its suggestions and its warnings remain alike on record, their soundness to be tested by the future course of government, now tending more and more, in all civilized countries, to the adoption of popular forms.
The writings of Mr. Adams upon Government may be classed according to the three periods in which they were written.
The first embraces the exposition of his theory, prior to the attempt in any state to form an independent system, and is called the plan.
The second contains the proposal of a distinct form, when he was himself called upon to take a share in the organization of a government, and is called the model.
The third includes the defence of the plan and model against all the objections that were raised against them, at a time when circumstances threatened to bring them into disrepute, and is, therefore, denominated the defence.
The rapidity with which events in 1775 were hastening a final separation between Great Britain and the Colonies, naturally suggested in many minds reflections upon the position in which the people of the latter might be placed after removing the foundation of all recognized authority. Mr. Adams, in his Autobiography, speaks of the discussions held upon government during that season, among the members of the Continental Congress. The following letter seems to have been an effort to embody the ideas then uppermost in the writer’s mind, made at the request of Richard Henry Lee, of Virginia, to whom it was addressed.
The copy from which this is printed was taken from the original, a few years since, by John Quincy Adams. Other copies were, however, circulated in Virginia at a much earlier date, one of which, with a few variations, was transmitted to England, and found its way to Government. It was discovered by Mr. Sparks, in the State Paper Office, and was printed by him in the Appendix to the second volume of Washington’s Writings. As the earliest trace of the author’s plan of government, it seems proper to be inserted here.
TO RICHARD HENRY LEE.
Philadelphia, 15 November, 1775.
The course of events naturally turns the thoughts of gentlemen to the subjects of legislation and jurisprudence; and it is a curious problem, what form of government is most readily and easily adopted by a colony upon a sudden emergency. Nature and experience have already pointed out the solution of this problem, in the choice of conventions and committees of safety. Nothing is wanting, in addition to these, to make a complete government, but the appointment of magistrates for the due administration of justice.
Taking nature and experience for my guide, I have made the following sketch, which may be varied in any one particular an infinite number of ways, so as to accommodate it to the different genius, temper, principles, and even prejudices, of different people.
A legislative, an executive, and a judicial power comprehend the whole of what is meant and understood by government. It is by balancing each of these powers against the other two, that the efforts in human nature towards tyranny can alone be checked and restrained, and any degree of freedom preserved in the constitution.
Let a full and free representation of the people be chosen for a house of commons.
Let the house choose, by ballot, twelve, sixteen, twenty-four, or twenty-eight persons, either members of the house, or from the people at large, as the electors please, for a council.
Let the house and council, by joint ballot, choose a governor, annually, triennially, or septennially, as you will.
Let the governor, council, and house, be each a distinct and independent branch of the legislature, and have a negative on all laws.
Let the governor, secretary, treasurer, commissary, attorney-general, and solicitor-general, be chosen annually, by joint ballot of both houses.
Let the governor, with seven counsellors, be a quorum.
Let all officers and magistrates, civil and military, be nominated and appointed by the governor, by and with the advice and consent of his council.
Let no officer be appointed but at a general council; and let notice be given to all the counsellors seven days, at least, before a general council.
Let the judges, at least of the supreme court, be incapacitated by law from holding any share in the legislative or executive power; let their commissions be during good behavior, and their salaries ascertained and established by law.
Let the governor have the command of the army, the militia, forts, &c.
Let the Colony have a seal, and affix it to all commissions.
In this way, a single month is sufficient, without the least convulsion, or even animosity, to accomplish a total revolution in the government of a colony. If it is thought more beneficial, a law may be made, by their new legislature, leaving to the people at large the privilege of choosing their governor and counsellors annually, as soon as affairs get into a more quiet course.
In adopting a plan in some respects similar to this, human nature would appear in its proper glory, asserting its own real dignity, pulling down tyrannies at a single exertion, and erecting such new fabrics as it thinks best calculated to promote its happiness.
As you were last evening polite enough to ask me for this model, if such a trifle will be of any service to you, or any gratification of curiosity, here you have it from, Sir,
Your friend and humble servant,
The PRESENT STATE
In a LETTER from a Gentleman
To his Friend.
Printed by John Dunlap.
“In the winter of 1776 there was much discussion in Congress concerning the necessity of independence, and advising the several States to institute governments for themselves under the immediate authority and original power of the people. Great difficulties occurred to many gentlemen in making a transition from the old governments to new, that is, from the royal to republican governments. In January, 1776, Mr. George Wythe, of Virginia, passing an evening with me, asked me what plan I would advise a colony to pursue, in order to get out of the old government and into a new one. I sketched in words a scheme, which he requested me to give him in writing. Accordingly, the next day, I delivered to him the following letter. He lent it to his colleague, Richard Henry Lee, who asked me to let him print it; to which I consented, provided he would suppress my name; for if that should appear, it would excite a continental clamor among the tories, that I was erecting a battering-ram to demolish the royal government and render independence indispensable.
“Quincy, 21 July, 1811.”
The copy of the pamphlet to which this notice was prefixed in writing on the fly-leaf, is now separated from it, and neither that nor any other has been discovered among the papers. Judge Cranch, when preparing his Memoir of Mr. Adams for the Columbian Institute at Washington, was unable to find it in print.
The first edition, making a duodecimo of twenty-eight pages, was printed in Philadelphia, by John Dunlap, and copies are yet preserved in that city. The Editor has seen not less than three in the City Library, an institution rich in the early pamphlets of the Revolution. It is not probable that many ever found their way to Massachusetts. Certainly, none are known to exist there at the present time. A reprint was made of it the same year, by John Gill, in Queen Street, Boston, a copy of which is now in the Library of the American Antiquarian Society, at Worcester. It makes sixteen pages, 12mo, of paper and print far inferior to the original edition. Since that period it has been repeatedly printed; upon one occasion it was attributed to Mr. Jefferson, but most frequently it has appeared in connection with notices of the life of the author.
THOUGHTS ON GOVERNMENT.
My dear Sir,—If I was equal to the task of forming a plan for the government of a colony, I should be flattered with your request, and very happy to comply with it; because, as the divine science of politics is the science of social happiness, and the blessings of society depend entirely on the constitutions of government, which are generally institutions that last for many generations, there can be no employment more agreeable to a benevolent mind than a research after the best.
Pope flattered tyrants too much when he said,
Nothing can be more fallacious than this. But poets read history to collect flowers, not fruits; they attend to fanciful images, not the effects of social institutions. Nothing is more certain, from the history of nations and nature of man, than that some forms of government are better fitted for being well administered than others.
We ought to consider what is the end of government, before we determine which is the best form. Upon this point all speculative politicians will agree, that the happiness of society is the end of government, as all divines and moral philosophers will agree that the happiness of the individual is the end of man. From this principle it will follow, that the form of government which communicates ease, comfort, security, or, in one word, happiness, to the greatest number of persons, and in the greatest degree, is the best.
All sober inquirers after truth, ancient and modern, pagan and Christian, have declared that the happiness of man, as well as his dignity, consists in virtue. Confucius, Zoroaster, Socrates, Mahomet, not to mention authorities really sacred, have agreed in this.
If there is a form of government, then, whose principle and foundation is virtue, will not every sober man acknowledge it better calculated to promote the general happiness than any other form?
Fear is the foundation of most governments; but it is so sordid and brutal a passion, and renders men in whose breasts it predominates so stupid and miserable, that Americans will not be likely to approve of any political institution which is founded on it.
Honor is truly sacred, but holds a lower rank in the scale of moral excellence than virtue. Indeed, the former is but a part of the latter, and consequently has not equal pretensions to support a frame of government productive of human happiness.
The foundation of every government is some principle or passion in the minds of the people. The noblest principles and most generous affections in our nature, then, have the fairest chance to support the noblest and most generous models of government.
A man must be indifferent to the sneers of modern Englishmen, to mention in their company the names of Sidney, Harrington, Locke, Milton, Nedham, Neville, Burnet, and Hoadly. No small fortitude is necessary to confess that one has read them. The wretched condition of this country, however, for ten or fifteen years past, has frequently reminded me of their principles and reasonings. They will convince any candid mind, that there is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is “an empire of laws, and not of men.” That, as a republic is the best of governments, so that particular arrangement of the powers of society, or, in other words, that form of government which is best contrived to secure an impartial and exact execution of the laws, is the best of republics.
Of republics there is an inexhaustible variety, because the possible combinations of the powers of society are capable of innumerable variations.
As good government is an empire of laws, how shall your laws be made? In a large society, inhabiting an extensive country, it is impossible that the whole should assemble to make laws. The first necessary step, then, is to depute power from the many to a few of the most wise and good. But by what rules shall you choose your representatives? Agree upon the number and qualifications of persons who shall have the benefit of choosing, or annex this privilege to the inhabitants of a certain extent of ground.
The principal difficulty lies, and the greatest care should be employed, in constituting this representative assembly. It should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them. That it may be the interest of this assembly to do strict justice at all times, it should be an equal representation, or, in other words, equal interests among the people should have equal interests in it. Great care should be taken to effect this, and to prevent unfair, partial, and corrupt elections. Such regulations, however, may be better made in times of greater tranquillity than the present; and they will spring up themselves naturally, when all the powers of government come to be in the hands of the people’s friends. At present, it will be safest to proceed in all established modes, to which the people have been familiarized by habit.
A representation of the people in one assembly being obtained, a question arises, whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one assembly. My reasons for this opinion are as follow:—
1. A single assembly is liable to all the vices, follies, and frailties of an individual; subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments. And all these errors ought to be corrected and defects supplied by some controlling power.
2. A single assembly is apt to be avaricious, and in time will not scruple to exempt itself from burdens, which it will lay, without compunction, on its constituents.
3. A single assembly is apt to grow ambitious, and after a time will not hesitate to vote itself perpetual. This was one fault of the Long Parliament; but more remarkably of Holland, whose assembly first voted themselves from annual to septennial, then for life, and after a course of years, that all vacancies happening by death or otherwise, should be filled by themselves, without any application to constituents at all.
4. A representative assembly, although extremely well qualified, and absolutely necessary, as a branch of the legislative, is unfit to exercise the executive power, for want of two essential properties, secrecy and despatch.
5. A representative assembly is still less qualified for the judicial power, because it is too numerous, too slow, and too little skilled in the laws.
6. Because a single assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.
But shall the whole power of legislation rest in one assembly? Most of the foregoing reasons apply equally to prove that the legislative power ought to be more complex; to which we may add, that if the legislative power is wholly in one assembly, and the executive in another, or in a single person, these two powers will oppose and encroach upon each other, until the contest shall end in war, and the whole power, legislative and executive, be usurped by the strongest.
The judicial power, in such case, could not mediate, or hold the balance between the two contending powers, because the legislative would undermine it. And this shows the necessity, too, of giving the executive power a negative upon the legislative, otherwise this will be continually encroaching upon that.
To avoid these dangers, let a distinct assembly be constituted, as a mediator between the two extreme branches of the legislature, that which represents the people, and that which is vested with the executive power.
Let the representative assembly then elect by ballot, from among themselves or their constituents, or both, a distinct assembly, which, for the sake of perspicuity, we will call a council. It may consist of any number you please, say twenty or thirty, and should have a free and independent exercise of its judgment, and consequently a negative voice in the legislature.
These two bodies, thus constituted, and made integral parts of the legislature, let them unite, and by joint ballot choose a governor, who, after being stripped of most of those badges of domination, called prerogatives, should have a free and independent exercise of his judgment, and be made also an integral part of the legislature. This, I know, is liable to objections; and, if you please, you may make him only president of the council, as in Connecticut. But as the governor is to be invested with the executive power, with consent of council, I think he ought to have a negative upon the legislative. If he is annually elective, as he ought to be, he will always have so much reverence and affection for the people, their representatives and counsellors, that, although you give him an independent exercise of his judgment, he will seldom use it in opposition to the two houses, except in cases the public utility of which would be conspicuous; and some such cases would happen.
In the present exigency of American affairs, when, by an act of Parliament, we are put out of the royal protection, and consequently discharged from our allegiance, and it has become necessary to assume government for our immediate security, the governor, lieutenant-governor, secretary, treasurer, commissary, attorney-general, should be chosen by joint ballot of both houses. And these and all other elections, especially of representatives and counsellors, should be annual, there not being in the whole circle of the sciences a maxim more infallible than this, “where annual elections end, there slavery begins.”
These great men, in this respect, should be, once a year,
This will teach them the great political virtues of humility, patience, and moderation, without which every man in power becomes a ravenous beast of prey.
This mode of constituting the great offices of state will answer very well for the present; but if by experiment it should be found inconvenient, the legislature may, at its leisure, devise other methods of creating them, by elections of the people at large, as in Connecticut, or it may enlarge the term for which they shall be chosen to seven years, or three years, or for life, or make any other alterations which the society shall find productive of its ease, its safety, its freedom, or, in one word, its happiness.
A rotation of all offices, as well as of representatives and counsellors, has many advocates, and is contended for with many plausible arguments. It would be attended, no doubt, with many advantages; and if the society has a sufficient number of suitable characters to supply the great number of vacancies which would be made by such a rotation, I can see no objection to it. These persons may be allowed to serve for three years, and then be excluded three years, or for any longer or shorter term.
Any seven or nine of the legislative council may be made a quorum, for doing business as a privy council, to advise the governor in the exercise of the executive branch of power, and in all acts of state.
The governor should have the command of the militia and of all your armies. The power of pardons should be with the governor and council.
Judges, justices, and all other officers, civil and military, should be nominated and appointed by the governor, with the advice and consent of council, unless you choose to have a government more popular; if you do, all officers, civil and military, may be chosen by joint ballot of both houses; or, in order to preserve the independence and importance of each house, by ballot of one house, concurred in by the other. Sheriffs should be chosen by the freeholders of counties; so should registers of deeds and clerks of counties.
All officers should have commissions, under the hand of the governor and seal of the colony.
The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skilful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law. For misbehavior, the grand inquest of the colony, the house of representatives, should impeach them before the governor and council, where they should have time and opportunity to make their defence; but, if convicted, should be removed from their offices, and subjected to such other punishment as shall be thought proper.
A militia law, requiring all men, or with very few exceptions besides cases of conscience, to be provided with arms and ammunition, to be trained at certain seasons; and requiring counties, towns, or other small districts, to be provided with public stocks of ammunition and intrenching utensils, and with some settled plans for transporting provisions after the militia, when marched to defend their country against sudden invasions; and requiring certain districts to be provided with field-pieces, companies of matrosses, and perhaps some regiments of light-horse, is always a wise institution, and, in the present circumstances of our country, indispensable.
Laws for the liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that, to a humane and generous mind, no expense for this purpose would be thought extravagant.
The very mention of sumptuary laws will excite a smile. Whether our countrymen have wisdom and virtue enough to submit to them, I know not; but the happiness of the people might be greatly promoted by them, and a revenue saved sufficient to carry on this war forever. Frugality is a great revenue, besides curing us of vanities, levities, and fopperies, which are real antidotes to all great, manly, and warlike virtues.
But must not all commissions run in the name of a king? No. Why may they not as well run thus, “The colony of to A. B. greeting,” and be tested by the governor?
Why may not writs, instead of running in the name of the king, run thus, “The colony of NA to the sheriff,” &c., and be tested by the chief justice?
Why may not indictments conclude, “against the peace of the colony of NA and the dignity of the same?”
A constitution founded on these principles introduces knowledge among the people, and inspires them with a conscious dignity becoming freemen; a general emulation takes place, which causes good humor, sociability, good manners, and good morals to be general. That elevation of sentiment inspired by such a government, makes the common people brave and enterprising. That ambition which is inspired by it makes them sober, industrious, and frugal. You will find among them some elegance, perhaps, but more solidity; a little pleasure, but a great deal of business; some politeness, but more civility. If you compare such a country with the regions of domination, whether monarchical or aristocratical, you will fancy yourself in Arcadia or Elysium.
If the colonies should assume governments separately, they should be left entirely to their own choice of the forms; and if a continental constitution should be formed, it should be a congress, containing a fair and adequate representation of the colonies, and its authority should sacredly be confined to these cases, namely, war, trade, disputes between colony and colony, the post-office, and the unappropriated lands of the crown, as they used to be called.
These colonies, under such forms of government, and in such a union, would be unconquerable by all the monarchies of Europe.
You and I, my dear friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to live. How few of the human race have ever enjoyed an opportunity of making an election of government, more than of air, soil, or climate, for themselves or their children! When, before the present epocha, had three millions of people full power and a fair opportunity to form and establish the wisest and happiest government that human wisdom can contrive? I hope you will avail yourself and your country of that extensive learning and indefatigable industry which you possess, to assist her in the formation of the happiest governments and the best character of a great people. For myself, I must beg you to keep my name out of sight; for this feeble attempt, if it should be known to be mine, would oblige me to apply to myself those lines of the immortal John Milton, in one of his sonnets:—
Copies of “Thoughts on Government” were sent by the author to many gentlemen with whom he had been in relations personal or political, and, among others, to Patrick Henry, of Virginia. The reply of Mr. Henry is on many accounts remarkable. It throws great light not only upon his own system at the commencement of the struggle, but upon the prevailing opinions of the time in the State to which he belonged.
TO JOHN ADAMS.
Williamsburgh, 20 May, 1776.
My Dear Sir,—
Your favor, with the pamphlet, came safe to hand. I am exceedingly obliged to you for it; and I am not without hopes it may produce good here, where there is among most of our opulent families a strong bias to aristocracy. I tell my friends you are the author. Upon that supposition, I have two reasons for liking the book. The sentiments are precisely the same I have long since taken up, and they come recommended by you. Go on, my dear friend, to assail the strongholds of tyranny; and in whatever form oppression may be found, may those talents and that firmness, which have achieved so much for America, be pointed against it.
Excuse me for telling you of what I think of immense importance; ’tis to anticipate the enemy at the French Court. The half of our Continent offered to France, may induce her to aid our destruction, which she certainly has the power to accomplish. I know the free trade with all the States would be more beneficial to her than any territorial possessions she might acquire. But pressed, allured, as she will be—but, above all, ignorant of the great thing we mean to offer may we not lose her? The consequence is dreadful.
Excuse me again. The confederacy;—that must precede an open declaration of independency and foreign alliances. Would it not be sufficient to confine it, for the present, to the objects of offensive and defensive nature, and a guaranty of the respective colonial rights? If a minute arrangement of things is attempted, such as equal representation, &c., &c., you may split and divide; certainly will delay the French alliance, which with me is every thing. The great force in San Domingo, Martinique, &c., is under the guidance of some person in high office. Will not the Mississippi lead your ambassadors thither most safely?
Our session will be very long, during which I cannot count upon one coadjutor of talents equal to the task. Would to God you and your Sam Adams were here! It shall be my incessant study, so to form our portrait of government, that a kindred with New England may be discerned in it; and if all your excellencies cannot be preserved, yet I hope to retain so much of the likeness, that posterity shall pronounce us descended from the same stock. I shall think perfection is obtained, if we have your approbation. I am forced to conclude; but first, let me beg to be presented to my ever-esteemed S. Adams. Adieu, my dear sir; may God preserve you, and give you every good thing.
P. Henry, Jr.
P.S.—Will you and S. A. now and then write?
In the month of January, 1776, the delegates of North Carolina were authorized by the colonial legislature, to apply to Mr. Adams for his views of the nature of the government it would be proper to form, in case of a final dissolution of the authority of the Crown. The following letter, addressed to Mr. John Penn, one of the number, was the reply. In many parts it is in the very words of the preceding pamphlet, whilst in others it so essentially amplifies the views, as to render its insertion necessary to the full comprehension of the system of the author.
No copy of this letter was retained by Mr. Adams. It was not printed until 1814, when Mr. John Taylor, of Caroline County, Virginia, to whom it had come from the hands of Mr. Penn, inserted it in his work, entitled “An Inquiry into the Principles and Policy of the Government of the United States,” from whence it is now taken.
TO JOHN PENN.
If I was possessed of abilities equal to the great task you have imposed upon me, which is to sketch out the outlines of a constitution for a colony, I should think myself the happiest of men in complying with your desire. Because, as politics is the art of securing human happiness, and the prosperity of societies depends upon the constitution of government under which they live, there cannot be a more agreeable employment to a benevolent mind than the study of the best kinds of government.
It has been the will of Heaven that we should be thrown into existence at a period when the greatest philosophers and lawgivers of antiquity would have wished to live. A period when a coincidence of circumstances without example, has afforded to thirteen Colonies, at once, an opportunity of beginning government anew from the foundation, and building as they choose. How few of the human race have ever had any opportunity of choosing a system of government for themselves and their children! How few have ever had any thing more of choice in government than in climate! These Colonies have now their election; and it is much to be wished that it may not prove to be like a prize in the hands of a man who has no heart to improve it.
In order to determine which is the best form of government, it is necessary to determine what is the end of government. And I suppose, that in this enlightened age, there will be no dispute, in speculation, that the happiness of the people, the great end of man, is the end of government; and, therefore, that form of government which will produce the greatest quantity of happiness is the best.
All sober inquirers after truth, ancient and modern, divines, moralists, and philosophers, have agreed that the happiness of mankind, as well as the real dignity of human nature, consists in virtue; if there is a form of government whose principle and foundation is virtue, will not every wise man acknowledge it more likely to promote the general happiness than any other?
Fear, which is said, by Montesquieu and other political writers, to be the foundation of some governments, is so sordid and brutal a passion, that it cannot possibly be called a principle, and will hardly be thought in America a proper basis of government.
Honor is a principle which ought to be sacred; but the Grecians and Romans, pagan as well as Christian, will inform us that honor, at most, is but a part of virtue, and therefore a feeble basis of government.
A man must be indifferent to sneer and ridicule, in some companies, to mention the names of Sidney, Harrington, Locke, Milton, Nedham, Neville, Burnet, Hoadly; for the lines of John Milton, in one of his sonnets, will bear an application, even in this country, upon some occasions:—
These great writers, however, will convince any man who has the fortitude to read them, that all good government is republican; that the only valuable part of the British constitution is so; for the true idea of a republic is an empire of laws, and not of men; and, therefore, as a republic is the best of governments, so that particular combination of power which is best contrived for a faithful execution of the laws, is the best of republics.
There is a great variety of republics, because the arrangements of the forms of society are capable of many variations.
As a good government is an empire of laws, the first question is, how shall the laws be made?
In a community consisting of large numbers, inhabiting an extensive country, it is not possible that the whole should assemble to make laws. The most natural substitute for an assembly of the whole, is a delegation of power from the many to a few of the most wise and virtuous. In the first place, then, establish rules for the choice of representatives; agree upon the number of persons who shall have the privilege of choosing one. As the representative assembly should be an exact portrait, in miniature, of the people at large, as it should think, feel, reason, and act like them, great care should be taken in the formation of it, to prevent unfair, partial, and corrupt elections. That it may be the interest of this assembly to do equal right and strict justice, upon all occasions, it should be an equal representation of their constituents; or, in other words, equal interests among the people should have equal interests in the representative body.
That the representatives may often mix with their constituents, and frequently render them an account of their stewardship, elections ought to be frequent:—
These elections may be septennial or triennial; but, for my own part, I think they ought to be annual; for there is not in all science a maxim more infallible than this, where annual elections end, there slavery begins.
But all necessary regulations for the method of constituting this assembly may be better made in times of more quiet than the present, and they will suggest themselves naturally, when the powers of government shall be in the hands of the people’s friends. For the present, it will be safest to go on in the usual way.
But we have as yet advanced only one step in the formation of a government. Having obtained a representative assembly, what is to be done next? Shall we leave all the powers of government to this assembly? Shall they make, and execute, and interpret laws too? I answer, No; a people cannot be long free, and never can be happy, whose laws are made, executed, and interpreted by one assembly. My reasons for this opinion are these:—
A single assembly is liable to all the vices, follies, and frailties of an individual; subject to fits of humor, transports of passion, partialities of prejudice; and, from these and other causes, apt to make hasty results and absurd judgments; all which errors ought to be corrected, and inconveniences guarded against, by some controlling power.
A single assembly is apt to grow avaricious, and in time would not scruple to exempt itself from burdens, which it would lay upon its constituents without sympathy.
A single assembly will become ambitious, and after some time will vote itself perpetual. This was found in the case of the Long Parliament; but more remarkably in the case of Holland, whose assembly first voted that they should hold their seats for seven years, then for life, and after some time, that they would fill up vacancies as they should happen, without applying to their constituents at all.
The executive power cannot be well managed by a representative assembly for want of two essential qualities, secrecy and despatch.
Such an assembly is still less qualified to exercise the judicial power; because it is too numerous, too slow, and generally too little skilled in the laws.
But shall the whole legislative power be left in the hands of such an assembly? The three first, at least, of the foregoing reasons will show that the legislative power ought not to be wholly entrusted to one assembly.
Let the representative body, then, elect from among themselves, or their constituents, or both, a distinct assembly, which we will call a council. It may consist of any number you please, say, twenty or thirty. To this assembly should be given a free and independent exercise of its judgment upon all acts of legislation, that it may be able to check and arrest the errors of the other.
But there ought to be a third branch of the legislature; and wherever the executive power of the state is placed, there the third branch of the legislature ought to be found.
Let the two houses, then, by joint ballot, choose a governor. Let him be chosen annually. Divest him of most of those badges of slavery called prerogatives, and give him a negative upon the legislature. This, I know, is liable to some objections, to obviate which, you may make him in a legislative capacity only president of the council. But if he is annually elective, you need not scruple to give him a free and independent exercise of his judgment; for he will have so great an affection for the people, the representatives and council, that he would seldom exercise this right, except in cases the public utility of which would soon be manifest, and some such cases would happen.
In the present exigency of American affairs, when, by an Act of Parliament, we are put out of the royal protection, and consequently discharged from all obligations of allegiance; and when it has become necessary to assume governments for immediate security, the governor, lieutenant-governor, secretary, treasurer, and attorney-general, should be chosen by joint ballot of both houses.
The governor, by and with, and not without, the advice and consent of council, should appoint all judges, justices, and all other officers, civil and military, who should have commissions signed by the governor, and under the seal of the colony.
Sheriffs should be chosen by the freeholders of the counties. If you choose to have a government more popular, all officers may be chosen by one house of assembly, subject to the negative of the other.
The stability of government, in all its branches, the morals of the people, and every other blessing of society and social institutions, depend so much upon an able and impartial administration of justice, that the judicial power should be separated from the legislative and executive, and independent upon both; the judges should be men of experience in the laws, of exemplary morals, invincible patience, unruffled calmness, and indefatigable application; their minds should not be distracted with complicated, jarring interests; they should not be dependent on any man or body of men; they should lean to none, be subservient to none, nor more complaisant to one than another. To this end, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.
If accused of misbehavior by the representative body before the governor and council, and if found guilty after having an opportunity to make their defence, they should be removed from their offices, and subjected to such other punishment as their offences deserve.
A rotation of offices in the legislative and executive departments has many advocates, and, if practicable, might have many good effects. A law may be made, that no man shall be governor, lieutenant-governor, secretary, treasurer, counsellor, or representative, more than three years at a time, nor be again eligible until after an interval of three years.
A constitution like this, of which the foregoing is a very imperfect plan, naturally introduces general knowledge into the community, and inspires the people with a conscious dignity becoming freemen. A general desire of reputation and importance among their neighbors, which cannot be obtained without some government of their passions, some good humor, good manners, and good morals, takes place in the minds of men, and naturally causes general virtue and civility. That pride which is introduced by such a government among the people, makes them brave and enterprising. That ambition which is introduced into every rank, makes them sober, industrious, and frugal. You will find among them some elegance, but more solidity; a little politeness, but a great deal of civility; some pleasure, but more business.
Let commissions run thus: “Colony of North Carolina to A. B. greeting,” &c., and be tested by the governor.
Let writs run: “The Colony of, &c., to the sheriff,” &c.
Let indictments conclude: “against the peace of the Colony of North Carolina, and the dignity of the same;” or if you please: “against the peace of the Thirteen United Colonies.”
We have heard much of a continental constitution; I see no occasion for any but a congress. Let that be made an equal and fair representative of the Colonies; and let its authority be confined to three cases,—war, trade, and controversies between colony and colony. If a confederation was formed, agreed on in Congress, and ratified by the assemblies, these Colonies, under such forms of government and such a confederation, would be unconquerable by all the monarchies of Europe.
This plan of a government for a colony, you see, is intended as a temporary expedient under the present pressure of affairs. The government once formed, and having settled its authority, will have leisure enough to make any alterations that time and experience may dictate. Particularly, a plan may be devised perhaps, and be thought expedient, for giving the choice of the governorto the people at large, and of the counsellors to the freeholders of the counties. But, be these things as they may, two things are indispensably to be adhered to,—one is, some regulation for securing forever an equitable choice of representatives; another is, the education of youth, both in literature and morals.
I wish, my dear sir, that I had time to think of these things more at leisure, and to write more correctly; but you must take these hints, rough as they run. Your own reflections, assisted by the patriots of North Carolina, will improve upon every part of them.
As you brought upon yourself the trouble of reading these crude thoughts, you can’t blame your friend,1
So early as the month of May, 1775, the difficulties attending the peculiar attitude of the patriotic party in Massachusetts had become sufficiently serious to elicit a letter from the Provincial Convention, the only centre of authority acknowledged at the time by the great body of the people, to the Continental Congress, requesting “most explicit advice respecting the taking up and exercising the powers of civil government,” and, curiously enough, declaring a readiness to “submit to such a general plan as the congress might direct for the colonies.”
An answer was not given to this modest, and even humble application, until it had been urgently repeated; and when at last it came, it was by no means so explicit as was requested, evidently partaking of the distracted counsels of the time. It evaded the true question of the source of power, by a resort to a fiction of law, much like that formerly used by the Long Parliament against Charles I. It assumed the charter granted by the King of Great Britain to be yet binding upon the people; whilst it charged upon the Governor, who was only his agent, acting under his appointment and pursuing his instructions, such a violation of it as forfeited all claim to their obedience. Until such a governor “should consent to govern the colony according to its charter,” it recommended a resort to the usual forms of election for a representative body, and in lieu of that officer, the substitution, by election of the convention, of a provisional council clothed with executive authority.
In this transition state, the advice thus given seems to have been deemed decisive; accordingly a new house, under the forms of the charter, was called; and a council was soon afterwards chosen, which proceeded to reorganize the courts, and “in the absence of the governor and lieutenant-governor,” to grant commissions. Some particulars respecting this period have been already given in a former volume,1 together with a copy of the invitation of the council to Mr. Adams, to occupy the chief place in the new judicial organization which it undertook to establish. But it was not long before the obstacles to this arrangement proved its utter inefficacy. Many of the people, oppressed by debts, were not slow in availing themselves of the objection, that the civil process still ran in the king’s name, although the king’s authority had been thrown off; and they went, in some places, to the length of obstructing by force the meeting of the inferior courts. A jealousy of all those denominated executive officers became so general, that they were marked for exclusion in the new elections to the representative body. Last of all, a contention arose between the council and the house, respecting the right to make military appointments, which threatened, at one moment, the most serious consequences to the weaker body. All these things served to show the slippery nature of the foundation upon which the community was standing, and from which nothing could have prevented a fall, but the immediate presence of the enemy, and the engrossing nature of the first duty of self-defence. On the fifteenth of May, 1776, the last support was taken from the charter, by the adoption in the continental congress, of the celebrated resolution and preamble, declaring it to be necessary, for reasons therein stated, “that the exercise of every kind of authority under the crown should be suppressed,” and “all the powers of government exerted under the authority of the people of the colonies.” In colonies like Pennsylvania and New York, less advanced in the struggle, this measure was construed as a dissolution of all existing forms of government, and as creating an immediate necessity for reorganization. In Massachusetts, the intermediate steps taken, though only temporary in their nature, seem to have been sufficient to dispel immediate anxiety for the consequences. Hence, it was not until September, 1776, that a proposition was adopted in the assembly, to appoint a committee, to prepare a form of government. A reasonable doubt of the extent of their powers restrained their going further without a reference to the people for authority to proceed. This course was finally agreed upon, but not until May of the next year, 1777. The people responded favorably; and, in pursuance of their instructions, the next legislative assembly devoted a considerable part of the year to the effort to make a constitution.
It is to be regretted, that, owing in some degree to the disturbed condition of things, the record of this proceeding was almost entirely neglected. The journals of the house and council furnish no light, probably for the reason that it was a matter not strictly within the province of either body, and one wherein both were fused into a single assembly having the attributes of neither. Hence, we can only gather the fact, that on the fourth of March, 1778, the form of instrument agreed upon was submitted to the people, by a resolution providing that the assent of two thirds of the voters should be required to give it validity.
This form failed to pass the ordeal of the popular judgment, so far as an opinion could be gathered from the very partial returns made of the votes. But a hundred and twenty towns neglected to express any opinion at all; and but twelve thousand persons, out of the whole state, went to the polls to answer in any way. Five sixths of them, however, voted in the negative, under the lead of a unanimous sentiment in Boston, the influence of which was at that time at its height. At this late period, it is difficult fully to comprehend the reasons of this decided condemnation. The rejected constitution of 1778 was certainly a very imperfect instrument, largely partaking of the haste and confusion of the time in which it was made; but, on the other hand, it was very much better than none at all, or than the temporary system which necessity had created. There was no bill of rights or definition of powers. The executive, legislative, and judicial departments were singularly commingled, and threatened some degree of confusion in the practical working of the machine; yet, notwithstanding these defects in the draught, it was at least a remedy for immediate evils, and the labor bestowed upon it can scarcely be said to have been wasted; for it contains the germ of some of the valuable fruits secured in the subsequent constitution.
Strange though it may seem, yet there is little reason to doubt that interests had already grown up, in this period of interregnum, adverse to the establishment of any more permanent government. So uncertain had the legislative body become of the sense of the majority on this point, that on the nineteenth of February of the next year, 1779, it adopted a resolution, proposing, that a vote of the people should be taken on two questions as a test of the will of the commonwealth. These two questions were,—first, whether the people would choose, at this time, to have any new form of government at all. Secondly, whether in case they did, they would empower their representatives to summon an assembly for the sole purpose of preparing such a form. To these propositions, nearly a third of the towns neglected to give any answer. Of the remainder, a majority of the voters responded in the affirmative. In obedience to this decision, a call of a convention was immediately issued; and elections were accordingly held, of delegates, to assemble on the first of September following, exclusively to form a constitution.
The share of Mr. Adams in this labor must now be explained. Prior to this time, he had confined himself to an expression of preference of the constitution of 1778, as a temporary measure, however imperfect, over the hazardous state of things under the provisional government. His first mission to Europe intervened, from which he only got back home on the second of August. The election of a delegate from his native town to the convention, took place seven days later, and he was the person chosen. He attended the opening of that body at Cambridge, on the first day of September, and remained in attendance until the eleventh of November, when he embarked upon his second mission to Europe. It is during this period, that his services in preparing the frame of government which was reported to the convention, and with some modifications finally adopted, were rendered. The precise nature of them, so far as they can now be distinguished, will be defined.
On Friday morning, the third of September, the convention, by a vote of 250 to 1, resolved, that it would prepare a declaration of rights of the people of the Massachusetts Bay. After some debate, it went a step further, and resolved, that it would “proceed to the framing a new constitution of government;” and it concluded the action of the day with the two following propositions:—
“Resolved, unanimously, That the government to be framed by this convention shall be a free republic.
“Resolved, That it is of the essence of a free republic, that the people be governed by fixed laws of their own making.”
The next day, a committee was chosen, consisting of thirty persons, to prepare a declaration of rights and the form of a constitution, out of whom the Hon. James Bowdoin, Samuel and John Adams, and John Lowell, were selected on behalf of the county of Suffolk, including the town of Boston. Monday, the sixth, was spent in what was called a free conversation upon the subjects that had been referred, and then it was voted to adjourn until the twenty-eighth of October, for the purpose of giving the committee time to prepare a report. Immediately upon the adjournment, the committee met in Boston, and, after extended discussion, delegated to a sub-committee of three members, the duty of preparing a draught of a constitution. The three were Mr. Bowdoin, Mr. Samuel Adams, and John Adams. By this sub-committee the task was committed to John Adams, who performed it. To them the draught was first submitted, and they accepted it, with one or two trifling erasures. It was then reported to the grand committee, who made some alterations. The preparation of a declaration of rights was intrusted by the general committee to Mr. Adams alone. It was reported by him, with the exception of the third article, upon which he could not satisfy his own judgment.1
At the present moment, it is impossible to define the precise extent of the modifications made of Mr. Adams’s draught, in the report as finally presented to the convention. So little attention was paid to the preservation of any of the papers, that not only the first draught is not to be found in the archives of the State, but even a copy of the report, as printed for the use of the members, was not there, when the committee, appointed by the legislature of 1832, to superintend the publication of the Journal of the Convention, undertook the task. Neither did they succeed in obtaining one from elsewhere, however necessary to the usefulness of their undertaking, until the body of their work had gone to press. It is sufficient for the present purpose, however, to know that, in its leading features, and in most of its language, the plan of Mr. Adams is preserved in the report. Even the most marked changes, which in later life, his recollection imputed to the action of the committee, now appear, by the report, not to have been made by them, but by the convention itself.
Considering all these circumstances, as well as the entire coincidence of the leading features of the system with the views of his whole life, it is fair to infer, that the paper was so far the product of his mind, as to merit a place in these volumes of his works.
That this was the idea which Mr. Adams himself had at the time is certain. For, in a letter dated 7 June, 1780, that is, immediately after the constitution had been ratified by the people, and addressed to Mr. Edmund Jenings, he sums up the matter thus: “I was chosen by my native town into the convention two or three days after my arrival. I was, by the convention, put upon the committee; by the committee, upon the sub-committee; so that I had the honor to be principal engineer. The committee made some alterations, as, I am informed, the convention have made a few others, in the report; but the frame and essence and substance is preserved.”
Of the care and attention devoted to perfecting the constitution, he says, in another letter: “There never was an example of such precautions as are taken by this wise and jealous people in the formation of their government. None was ever made so perfectly upon the principle of the people’s rights and equality. It is Locke, Sidney, and Rousseau and De Mably reduced to practice, in the first instance. I wish every step of their progress printed and preserved.” Yet, if reliance can be placed upon a statement made by Dr. Gordon in the newspapers, he was not of those who held that absolute perfection could ever be reached; or that what had been done in one age might not be susceptible of improvement, by adaptation to the altered condition of things, in another.2
In considering this paper, the circumstances under which it was prepared should not be overlooked. Until the adoption of the federal constitution, the states were generally regarded as sovereignties, associated in a league for certain purposes not materially impairing their independent character. In these it was supposed that ambition would find its principal field. A form of government for one of these commonwealths was to be matured, with all the care and all the precautions against well-known dangers, that could be required in the greatest and most complicated case of an independent society. The subsequent transfer to the national government of all the great attributes of sovereignty, which occasion those dangers and difficulties, has materially affected the importance of the state constitutions. With the removal of the great objects of human ambition to another sphere, it is not more difficult to form a good practical system of government for a State than for a village or a family. This must account for the easy working of all the forms which have since been adopted by the respective States of the Union, however opposite in their character, and whatever may be the soundness of the objections that can be raised against some parts of them. The agitations of the system rarely shake it deeply, because they are deadened by the stronger power brought to bear from without. Hence, the careful limitations of the executive, the legislative, and the judicial power, to be found in the constitution of Massachusetts, are to be examined as parts of a separate system, standing or falling upon its own merits, rather than as subsidiary instruments of a greater machine, in which the interests and passions of men find their ultimate point of concentration. For the purposes of science, Massachusetts must, in this case, be regarded as the type of all independent, civilized communities, to which it is designed to present a model of government adapted to secure the great ends of human society.
In the following pages the effort is made, not simply to give such a model, as is supposed to have been mainly shaped by Mr. Adams, but also to trace the changes which it underwent after it left his hands. It will appear that modifications, which deserve the name of improvements, were adopted under the influence of the great practical and professional abilities freely applied to the subject in the deliberations of the convention. Moreover, the changes that have been made, in the course of seventy years that the system has been in operation, are all noted, in such a manner as to furnish a connected view of the progress of opinion under a popular form of government during that period. Upon such data as these can alone be formed any just inferences as to the perpetuity of free institutions. The subject is one which has not yet been dealt with in a truly philosophical sense in America, though it opens a wider field of analytical investigation than any other presented by its history.
In examining this part of the work it will be necessary to keep in mind, that the text is that of the Report made by the committee of the convention, and prepared for them by Mr. Adams. The passages inclosed within brackets are those which were entirely erased by the convention. Those marked by Italic letters are such as underwent changes; the exact substitutes are supplied in notes to the respective places. Wherever a blank occurs, the note will indicate the words inserted in the form as finally adopted. The amendments engrafted by the later convention of 1820, as well as subsequently, under the authority created by that assembly, are appended to those sections and articles which they respectively affect.
THE REPORT OF A CONSTITUTION, OR FORM OF GOVERNMENT, FOR THE COMMONWEALTH OF MASSACHUSETTS;
Agreed upon by the Committee,—to be laid before theConvention of Delegates,assembled atCambridge,on the first day of September, 1779; and continued by adjournment to the twenty-eight day of October following.
The end of the institution, maintenance, and administration of government is to secure the existence of the body politic; to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life; and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, happiness, and prosperity.
The body politic is formed by a voluntary association of individuals. It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them, that every man may, at all times, find his security in them.
We, therefore, [the delegates of] the people of Massachusetts, [in general convention assembled, for the express and sole purpose of framing a constitution, or form of government, to be laid before our constituents, according to their instructions,] acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording to this people,1 in the course of His providence, an opportunity of entering into an original, explicit, and solemn compact with each other, deliberately and peaceably, without fraud, violence, or surprise;2 and of forming a new constitution of civil government for themselves3 and [their] posterity; and devoutly imploring His direction in a design so interesting4 [to them and their posterity,]—do, [by virtue of the authority vested in us by our constituents,] agree upon NA5 the following Declaration of Rights, and Frame of Government, as the CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS.
A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OF MASSACHUSETTS.
Art. I. All men are born [equally] free and independent,7 and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting [their] property; in fine, that of seeking and obtaining their safety and happiness.
II. It is the NA1 duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner NA2 most agreeable to the dictates of his own conscience; or, for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.
III. [Good morals being necessary to the preservation of civil society; and the knowledge and belief of the being of GOD, His providential government of the world, and of a future state of rewards and punishment, being the only true foundation of morality, the legislature hath, therefore, a right, and ought to provide, at the expense of the subject, if necessary, a suitable support for the public worship of GOD, and of the teachers of religion and morals; and to enjoin upon all the subjects an attendance upon their instructions at stated times and seasons; provided there be any such teacher on whose ministry they can conscientiously and conveniently attend.]3
All moneys paid by the subject to the support of public worship, and of the instructors in religion and morals,1 shall, if he require it, be uniformly applied to the support of the NA2 teacher or teachers of his own religious NA3 denomination, if there be such whose ministry he attends upon;4 otherwise it may be paid to5 the teacher or teachers of the parish or precinct where he usually resides.6NA [7 ]
IV. The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which are1 not, or may not hereafter be by them expressly delegated to the United States of America, in congress assembled.
V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.2
VI. No man, nor corporation or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title, being in nature neither hereditary nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.1
VII. Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men; therefore, the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it.2
VIII. In order to prevent those who are vested with authority from becoming oppressors, the people have a right, at such periods and in such manner as may be delineated in3 their frame of government, to cause their public officers to return to private life, and to fill up vacant places by certain and regular elections NA4
IX. All elections ought to be free; and all the [male] inhabitants of this commonwealth, having sufficient qualifications,5 have an equal right to elect officers, and to be elected, for public employments.
X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; and to give his personal service, or an equivalent, when necessary. But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. NA6
XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws.
XII. No subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally described to him. He cannot1 be compelled to accuse [himself,] or [to] furnish evidence against himself; and every subject shall have a right to be fully heard in his defence, by himself or his counsel at his election; to meet the witnesses against him face to face; to produce all proofs that may be favorable to him;2 [to require a speedy and public trial by an impartial jury of the country, without whose unanimous consent, or his own voluntary confession, he cannot finally be declared guilty, or sentenced to loss of life, liberty, or property.]3
XIII. In criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen.
[XIV.]3 No subject [of the commonwealth] shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.
XIV. [XV.] Every man4 has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases and with the formalities prescribed by the laws.
XV. [XVI.] In all controversies concerning property, and in all suits between two or more persons, NA1 the parties have a right to a trial by [a] jury; and this method of procedure shall be held sacred; unless in causes arising on the high seas, and such as relate to mariners’ wages, the legislature shall hereafter find it necessary to alter it.
XVI. [XVII.]The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained.2
XVII. [XVIII.] The people have a right to keep and to bear arms for the common defence. And as in time of peace [standing] armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
XVIII. [XIX.] A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives. And they have a right to require of their lawgivers and magistrates an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.
XIX. [XX.] The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and the grievances they suffer.
XX. [XXI.] The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for; [and there shall be no suspension of any law for the private interest, advantage, or emolument, of any one man, or class of men.]
XXI. [XXII.] The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
XXII. [XXIII.] The legislature ought frequently to assemble for the redress of grievances, for correcting, strengthening, and confirming the laws, and for making new laws as the common good may require.
XXIII. [XXIV.] No subsidy, charge, tax, impost, or duties ought to be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature.
XXIV. [XXV.] Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government.
XXV. [XXVI.] No man1 ought in any case, or in any time, to be declared guilty of treason or felony by [any act of] the legislature.
XXVI. [XXVII.] No magistrate or court of law shall demand excessive bail, or sureties, impose excessive fines, or inflict cruel or unusual punishments.
XXVII. [XXVIII.] In time of peace, no soldier ought to be quartered in any house without the consent of the owner; and in time of war, such quarters ought not to be made, but by the civil magistrate in a manner ordained by the legislature.
XXVIII. [XXIX.] No person can in any case be subjected to law martial, or to any penalties or pains by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature.
XXIX. [XXX.] It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people and of every citizen, that the judges2 should hold their offices as long as they behave themselves well, and that they should have honorable salaries ascertained and established by standing laws.
XXX. [XXXI.]The judicial department of the state ought to be separate from, and independent of, the legislative and executive powers.1
[CHAPTER II.2 ]
THE FRAME OF GOVERNMENT.
The people inhabiting the territory heretofore3 called the Province of Massachusetts Bay, do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or State, by the name of THE COMMONWEALTH OF MASSACHUSETTS.
In the government of the Commonwealth of Massachusetts, the legislative, executive, and judicial power shall be placed in separate departments, to the end that it might be a government of laws, and not of men.1
Art. I.The department of legislation shall be formed by two branches, a senate and house of representatives; each of which shall have a negative on the other.
[And the first magistrate shall have a negative upon all the laws, that he may have power to preserve the independence of the executive and judicial departments.]1
III. [II.] The general court shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be held in the name of the commonwealth, for the hearing, trying, and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes, and things, whatsoever, arising or happening within the commonwealth, or between or concerning persons inhabiting, or residing, or brought within the same; whether the same be criminal or civil, or whether the said crimes be capital or not capital, and whether the said pleas be real, personal or mixt; and for the awarding and making out of execution thereupon. To which courts and judicatories are hereby given and granted full power and authority, from time to time, to administer oaths or affirmations, for the better discovery of truth in any matter in controversy, or depending before them.
IV. [III.] And further, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof; and to name and settle annually, or provide by fixed laws, for the naming and settling all civil officers within the said commonwealth, [such officers excepted] the election and constitution of whom are not hereafter in this Form of Government otherwise provided for; and to set forth the several duties, powers, and limits, of the several civil and military officers of this commonwealth, and the forms of such oaths NA1 as shall be respectively administered unto them for the execution of their several offices and places, so as the same be not repugnant or contrary to this constitution; [and also to impose fines, mulcts, imprisonments, and other punishments;] and to impose and levy proportional and reasonable assessments, rates, and taxes, upon [the persons of] all the inhabitants of, and NA2 within the said commonwealth, [and upon all estates within the same,] NA3 to be issued and disposed of by warrant, under the hand of the governor of this commonwealth for the time being, with the advice and consent of the council, for the public service, in the necessary defence and support of the government of the said commonwealth, and the protection and preservation of the subjects thereof, according to such acts as are or shall be in force within the same [and to dispose of matters and things whereby they may be religiously, peaceably, and civilly governed, protected, and defended.]
I.There shall be annually elected by the freeholders and other inhabitants of this commonwealth, qualified as in this constitution is provided, forty persons, to be counsellors and senators for the year ensuing their election, to be chosen [in and] by the inhabitants of the districts into which the commonwealth may from time to time be divided by the general court, for that purpose. And the general court, in assigning the numbers to be elected by the respective districts, shall govern themselves by the proportion of the public taxes paid by the said districts;4 and timely make known to the inhabitants of the commonwealth, the limits of each district, and the number of counsellors and senators to be chosen therein; provided that the number of such districts shall be never more than sixteen, nor less than ten.1
And the several counties in this commonwealth shall, until the general court shall determine it necessary to alter said districts, be districts for the choice of counsellors and senators (except that the counties of Dukes County and Nantucket shall form one district for that purpose,) and shall elect the following number for counsellors and senators, namely,—
II. The senate shall be the first branch of the legislature; and the senators shall be chosen in the following manner, namely,—There shall be a meeting on the first Monday in April, annually, forever, of the inhabitants of all the towns3 in the several counties of this commonwealth, to be called by the selectmen, and warned in due course of law, at least seven days before the first Monday in April, for the purpose of electing persons to be senators and counsellors. And at such meetings every male person4 of twenty-one years of age and upwards, resident in such towns one year next preceding the annual election of senators, having a freehold estate within the commonwealth of the annual income of three pounds, or other real or personal estate of the value of sixty pounds, shall have a right to give in his vote for the senators for the district.
The selectmen of the several towns shall preside at such meetings, and shall be under oath, as well as the town-clerk, to preside impartially, according to their best skill and judgment; and to make a just and true return.
The selectmen shall receive the votes of all the inhabitants of such towns,1 qualified to vote for senators, and shall sort and count them in open town meeting, and in presence of the town-clerk, who shall make a fair record, in presence of the selectmen, and in open town meeting, of the name of every person voted for, and of the number of votes against his name; and a fair copy of this record shall be attested by the selectmen and the town-clerk, and shall be sealed up, directed to the secretary of the commonwealth, for the time being, with a superscription, expressing the purport of the contents thereof, and delivered by the town-clerk of such towns to the sheriff of the county in which such town lies, thirty days at least before the last Wednesday in May, annually; or it shall be delivered into the secretary’s office seventeen days at least before the said last Wednesday in May; and the sheriff of each county shall deliver all such certificates by him received into the secretary’s office, seventeen days before the said last Wednesday in May.
And the inhabitants of plantations unincorporated, qualified as this constitution provides, who are or shall be empowered and required to assess taxes upon themselves toward the support of government, shall have the same privilege of voting for counsellors and senators in the plantations where they reside, as town inhabitants have in their respective towns; and the plantation meetings for that purpose shall be held annually, on the same first Monday in April, at such place in the plantations respectively, as the assessors thereof shall direct; which assessors shall have like authority for notifying the electors, collecting and returning the votes, as the selectmen and town-clerks have in their several towns by this constitution. And all other persons living in places unincorporated (qualified as aforesaid) who shall be assessed to the support of government by the assessors of an adjacent town, shall have the privilege of giving in their votes for counsellors and senators, in the town where they shall be assessed, and be notified of the place of meeting by the selectmen of the town where they shall be assessed for that purpose accordingly.
III. And that there may be a due convention of senators on the last Wednesday in May, annually, the governor, with five of the council, for the time being, shall, as soon as may be, examine the returned copies of such records; and fourteen days before the said day he shall issue his summons to such persons as shall appear to be chosen by a majority of voters, to attend on that day, and take their seats accordingly; provided, nevertheless, that, for the first year, the said returned copies shall be examined by the president and five of the council of the former constitution of government; and the said president shall, in like manner, issue his summons to the persons so elected, that they may take their seats, as aforesaid.
IV. The senate [however] shall be the final judge of the elections, returns, and qualifications of their own members, NA1 and shall, on the said last Wednesday in May, annually, determine and declare who are elected by each district to be senators, by a majority of votes. And, in case there shall not appear to be the full number of senators returned, elected by a majority of votes for any district, the deficiency shall be supplied in the following2 manner, namely:—The members of the house of representatives, and such senators as shall be declared elected, shall take the names of twice the number of senators wanting, fromthose who shall be found to have the highest number of votes in such district, and not elected;1 and out of these shall elect, by ballot, a number of senators sufficient to fill up the vacancies in such district. And in this manner all such vacancies shall be filled up in every district of the commonwealth; and in like manner all vacancies in the senate, arising by death, removal out of the state, or otherwise, shall be supplied as soon as may be after such vacancies shall happen.
V. Provided, nevertheless, that no person shall be capable of being elected as a senator, who is not [of the Christian religion, and]2 seised in his own right of a freehold within this commonwealth, of the value of three hundred pounds at least, NA3 and who has not been an inhabitant of this commonwealth for the space of seven4 years, [three of which] immediately preceding his election, and NA5 in the district for which he shall be chosen.
VI. The senate shall have power to adjourn themselves, provided such adjournments do not exceed two days at a time.
VII. The senate shall choose its own president, appoint its own officers, and determine its own rules of proceeding[s].
VIII. The senate shall be a court, with full authority to hear and determine all impeachments made by the house of representatives, against any officer or officers of the commonwealth, for misconduct and maladministration in their offices. But previous to the trial of every impeachment, the members of the senate shall respectively be sworn, truly and impartially to try and determine the charge in question, according to evidence. Their judgment, however, shall not extend farther than to removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit under this commonwealth. But the party so convicted shall be, nevertheless, liable to indictment, trial, judgment, and punishment, according to the laws of the land.1
House of Representatives.
I.There shall be in the legislature of this commonwealth a representation of the people annually elected, and founded in2 equality.
II. And, in order to provide for a representation of the citizens of this commonwealth, founded upon the principle of equality, every corporate town, containing one hundred and fifty ratable polls, may elect one representative. Every corporate town, containing three hundred and seventy-five ratable polls, may elect two representatives. Every corporate town, containing six hundred ratable polls, may elect three representatives; and proceeding in that manner, making two hundred and twenty-five ratable polls the mean increasing number for every additional representative.
[And forever, hereafter, the least number of ratable polls necessary to entitle a corporate town to elect one representative, when increased by the addition of a number equal to half the said least number, shall be the mean increasing number of ratable polls for every additional representative any corporate town may elect.
And, to prevent hereafter the house of representatives from becoming unwieldy, and incapable of debating and deliberating, by the great additions it would continually receive from the increasing settlement and population of this commonwealth, no corporate town shall, from and after the year of our Lord, one thousand seven hundred and ninety, be entitled to elect one representative, unless it shall contain two hundred ratable polls; nor to elect two representatives, unless it shall contain five hundred ratable polls; nor to elect three representatives, unless it shall contain eight hundred ratable polls; and so proceeding in that manner, making, by the aforesaid rule, three hundred ratable polls the mean increasing number for every additional representative. And every tenth year, from and after the said year of our Lord, one thousand seven hundred and ninety, and until such time as the number of representatives which may be elected for this commonwealth shall not exceed the number of two hundred, the least number of ratable polls which, at that time, any corporate town must contain to entitle it to elect one representative, shall be increased by the addition of fifty; and the least number aforesaid, thus increased by the said addition, shall be the number of ratable polls any corporate town must contain to entitle it to elect one representative; and the number of representatives any corporate town may elect shall be regulated accordingly, by the rules aforesaid.
The freeholders and other inhabitants of this commonwealth, qualified to vote for representatives, living in corporate towns, which, severally, shall contain a less number of ratable polls than is necessary to entitle them, respectively, to elect one representative, shall, nevertheless, have a right to associate with some town or towns adjoining, for the election of representatives; and, in such cases, the voters thus united, shall have a right to elect the same number of representatives as they would have done were they inhabitants of one corporate town; which representatives may be elected out of either of the associated towns, indifferently. And the legislature shall, from time to time, determine what towns shall thus associate, the manner of the association, and the method and manner of calling and conducting the meetings of the associated towns for the election of representatives.]1
III.The members1 of the house of representatives shall be chosen by written votes; [and no person shall be qualified or eligible to be a member of the said house, unless he be of the Christian religion,] and, for one year at least, next preceding his election, shall have been an inhabitant of, and have been seised in his own right of a freehold of the value of one hundred pounds, within the town [or towns] he shall be chosen to represent; NA1 and he shall cease to represent the said town [or towns] immediately on his ceasing to be a freeholder within the same.2
IV. Every male person, being twenty-one years of age, and resident in any particular town in this commonwealth for the space of one year next preceding, having a freehold estate within the same town, of the annual income of three pounds, or other3 estate [real or personal or mixt] of the value of sixty pounds, shall have a right to vote in the choice of a representative or representatives for the said town, [or for the towns united as aforesaid.]4
V. The members of the house of representatives shall be chosen annually in the month of May, ten days at least before the last Wednesday of that month, [from among the wisest, most prudent, and virtuous of the freeholders.]
VI. The house of representatives shall be the grand inquest of this commonwealth; and all impeachments made by them shall be heard and tried by the senate.
VII. All money-bills shall originate in the house of representatives; but the senate may propose or concur with amendments, as on other bills.
VIII. The house of representatives shall have power to adjourn themselves; provided such adjournment shall not exceed two days at a time.
IX. Not less than sixty members of the house of representatives shall constitute a quorum for doing business.
X. The house of representatives shall NA1 choose their own speaker, appoint their own officers, and settle the rules and orders of proceeding in their own house. They shall have authority to punish, by imprisonment, every person NA2 who shall be guilty of disrespect to the house, in its presence, by any disorderly or contemptuous behavior; or by threatening or ill-treating any of its members; or, in a word, by obstructing its deliberations; every person guilty of a breach of its privileges, in making arrests for debts, or by assaulting one of its members during his attendance at any session, or on the road, whether he be going to the house or returning home; in assaulting any one of its officers, or in disturbing him in the execution of any order or procedure of the house; in assaulting or troubling any witness or other person ordered toattend the house, in his way in going or returning, or in rescuing any person arrested by order of the house.1
XI. The senate shall have the same powers in the like cases; and the governor and council shall have the same authority to punish in like cases. Provided, that no imprisonment on the warrant or order of the governor, council, senate, or house of representatives, for either of the above described offences, be for a term exceeding thirty days.2
CHAPTER II. [III.]
Art. I.There shall be a supreme executive magistrate, who shall be styled, THE GOVERNOR OF THE COMMONWEALTH OF MASSACHUSETTS, and whose title shall be, HIS EXCELLENCY.
II. The governor shall be chosen annually; and no person shall be eligible to this office unless, at the time of his election, he shall have been an inhabitant of this commonwealth for seven years next preceding; and unless he shall at the same time be seised in his own right of a freehold within the commonwealth, of the value of one thousand pounds; and unless he shall3NA be of the Christian religion.
III. Those persons who shall be qualified to vote for senators and representatives within the several towns of this commonwealth, shall, at a meeting to be called for that purpose, on the first Monday of April annually, give in their votes for a governor, to the selectmen, who shall preside at such meetings; and the town clerk, in the presence and with the assistance of the selectmen, shall in open town meeting sort and count the votes, and form a list of the persons voted for, with the number of votes for each person against his name, and shall make a fair record of the same in the town books, and a public declaration thereof in the said meeting; and shall, in the presence of the inhabitants, seal up copies of the said list, attested by him and the selectmen, and transmit the same to the sheriff of the county, thirty days at least before the last Wednesday in May; or shall1 cause returns of the same to be made to the office of the secretary of the commonwealth, seventeen days at least before the said day, who2 shall lay the same before the senate and the house of representatives, on the last Wednesday in May, to be by them examined; and, in case of an election by a majority of votes through the commonwealth,3 the choice shall be by them declared and published. But if no person shall have a majority of votes, the house of representatives shall, by ballot, elect two out of four persons who had the highest number of votes, if so many shall have been voted for, but if otherwise, out of the number voted for; and make return to the senate of the two persons so elected, on which the senate shall proceed, by ballot, to elect one, who shall be declared governor.
[IV.] [4 ] (Transposed.)
IV. [V.] The governor shall have authority, from time to time, at his discretion, to assemble and call together the counsellors of this commonwealth, for the time being; and the governor, with the said counsellors, or five of them at least, shall and may, from time to time, hold and keep a council for the ordering and directing the affairs of the commonwealth according to law.1
V. [VI.] The governor, with advice of council, shall have full power and authority, in the recess of the general court, to prorogue the same from time to time, not exceeding ninety days in any one recess of the said court; and during the session of the said court, to adjourn or prorogue it to any time the two houses shall desire, and to dissolve the same, at their request, or on the Wednesday next preceding the last Wednesday in May; and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the commonwealth shall require the same.2
VI. [VII.] In cases of disagreement between the two houses, with regard to the NA3 time of adjournment or prorogation, the governor, with advice of the council, shall have a right to adjourn or prorogue the general court, NA4 as he shall determine the public good shall require.
VII. [VIII.] The governor of this commonwealth, for the time being, shall be the commander-in-chief of the army and navy, and of all the military forces of the state by sea and land; and shall have full power, by himself or by any [chief] commander, or other officer or officers, [to be appointed by him,] from time to time to train, instruct, exercise, and govern the militia and navy; and for the special defence and safety of the commonwealth, to assemble in martial array and put in warlike posture, the inhabitants thereof; and to lead and conduct them, and with them to encounter, [expulse,] repel, resist, NA5 and pursue, by force of arms, as well by sea as by land, within or without the limits of this commonwealth, and also to kill, slay, destroy, NA1 and conquer, by all fitting ways, enterprises, and means whatsoever, all and every such person and persons as shall at any time hereafter, in a hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of this commonwealth; and to use and exercise over the army and navy, and over the militia in actual service, the law martial in time of war, invasion, or rebellion,NA2 as occasion shall necessarily require; [and also from time to time to erect forts, and to fortify any place or places within the said commonwealth, and the same to furnish with all necessary ammunition, provisions, and stores of war, for offence or defence, and to commit from time to time the custody and government of the same to such person or persons as to him shall seem meet; and in times of emergency the said forts and fortifications to demolish at his discretion;] and to take and surprise, by all ways and means whatsoever, all and every such person or persons, with their ships, arms, ammunition, and other goods, as shall in a hostile manner invade, or attempt the invading, conquering, or annoying this commonwealth, and [in fine] that the governor be intrusted with all NA3 other powers, incident to the offices of captain-general and commander-in-chief and admiral, to be exercised agreeably to the rules and regulations of the constitution and the laws of the land NA4
Provided, that the said governor shall not at any time hereafter, by virtue of any power by this constitution granted, or hereafter to be granted to him by the legislature, transport any of the inhabitants of this commonwealth, or oblige them to march, out of the limits of the same, without their free and voluntary consent, or the consent of the general court, NA5 [nor grant commissions for exercising the law martial upon any of the inhabitants of this commonwealth, without the advice and consent of the council of the same.]
VIII. [IX.] The power of pardoning offences, except such as persons may be convicted of before the senate by an impeachment of the house, shall be in the governor, by and with the advice of council. But no charter of pardon granted by the governor, with advice of the council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offence or offences intended to be pardoned.
IX. [X.] All judicial officers, the attorney-general, the solicitor-general, all sheriffs, coroners, registers of probate, [and registers of maritime courts,] shall be nominated and appointed by the governor, by and with the advice and consent of the council; and every such nomination shall be made by the governor, and made at least seven days prior to such appointment.
[XI.] [All officers of the militia shall be appointed by the governor, with the advice and consent of the council; he first nominating them seven days at least before the appointment.]1
XI. [XII.]All1 moneys shall be issued out of the treasury of this commonwealth, and disposed of NA2 by warrant, under the hand of the governor for the time being, with the advice and consent of the council, for the necessary defence and support of the commonwealth; and for the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court.
XII. [XIII.] All public boards, the commissary-general, all superintending officers of public magazines and stores, belonging to this commonwealth, and all commanding officers of forts and garrisons within the same, shall, once in every three months officially, and without requisition, and at other times, when required by the governor, deliver to him an account of all goods, stores, provisions, ammunition, cannon with their appendages, and small arms with their accoutrements, and of all other public property whatever under their care respectively; distinguishing the quantity, number, quality, and kind of each, as particularly as may be; together with the condition of such forts and garrisons. And the said commanding officers shall exhibit to the governor, when required by him, true and exact plans of such forts, and of the land and sea, or harbor or harbors, adjacent.
And the said boards, and all public officers, shall communicate to the governor, as soon as may be after receiving the same, all letters, despatches, and intelligences, of a public nature, which shall be directed to them respectively.
[XIV. And to prevent an undue influence in this commonwealth, which the first magistrate thereof may acquire, by the long possession of the important powers and trusts of that office; as also to stimulate others to qualify themselves for the service of the public in the highest stations, no man shall be eligible as governor of this commonwealth, more than five years in any seven years.]1
XIII. [XV.] As the public good requires that the governor should not be under the undue influence of any of the members of the general court, by a dependence on them for his support; that he should, in all cases, act with freedom for the benefit of the public; that he should not have his attention necessarily diverted from that object to his private concerns; and that he should maintain the dignity of the commonwealth, in the character of its chief magistrate, it is necessary that he should have an honorable stated salary, of a fixed and permanent value, amply sufficient for those purposes, and established by standing laws; and it shall be among the first acts of the general court, after the commencement of this constitution, to establish such salary by law accordingly.
Permanent and honorable salaries shall also be established by law for the justices of the superior2 court.
And if it shall be found that any of the salaries aforesaid, so established, are insufficient, they shall from time to time be enlarged, as the general court shall judge proper.
Lieutenant-Governor, [and the ascertaining the Value of the Money mentioned in this Constitution, as Qualifications to Office, &c.]
I.There shall be annually elected a lieutenant-governor of the Commonwealth of Massachusetts, whose title shall be HIS HONOR, and who shall be qualified, in point of religion, property, and residence in the commonwealth, in the same manner with the governor. He shall be chosen on the same day, in the same manner, and by the same persons.1 The return of the votes for this officer, and the declaration of his election shall be in the same manner. And if no one person shall be found to have a majority of votes,2 the vacancy shall be filled by the senate and house of representatives, in the same manner as the governor is to be elected, in case no one person has3 a majority of votes4 to be governor.
II.The lieutenant-governor shall always be, ex-officio, a member, and, in the absence of the governor, president, of the council.5
III. Whenever the chair of the governor shall be vacant, by reason of his death, or absence from the commonwealth, or otherwise, the lieutenant-governor, for the time being, shall, during such vacancy, NA6 have and exercise all the powers and authorities which, by this constitution, the governor is vested with, when personally present.
[IV. and V.] (Transposed. See Chapter VI. p. 264.)
Council, and the Manner of settling Elections by the Legislature; [Oaths to be taken, &c.]
I.There shall be a council for advising the governor in the executive part of government, to consist of nine persons besides the lieutenant-governor, whom the governor, for the time being, shall have full power and authority, from time to time, at his discretion, to assemble and call together. And the governor, with the said counsellors, or five of them at least, shall and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, according to the laws of the land.
II. Nine counsellors shall out of1 the persons returned for counsellors and senators, [be annually chosen,] on the last Wednesday in May, by the joint ballot of the senators and representatives assembled in one room. NA2 The seats of the persons thus elected into the council3 and accepting the trust, shall be vacated in the senate, [and, in this manner, the number of senators shall be reduced to thirty-one.]4
III. The counsellors, in the civil arrangements of the commonwealth, shall have rank next after the lieutenant-governor.
IV. Not more than two counsellors shall be chosen out of any one county5 of this commonwealth.
V. The resolutions and advice of the council shall be recorded in a register, and signed by the members present; and this record may be called for at any time by either house of the legislature; and any member of the council may insert his opinion contrary to the resolution of the majority.
VI. Whenever the office of the governor and lieutenant-governor shall be vacant, by reason of death, absence, or otherwise, then the council, or the major part of them, shall, during such vacancy, have full power and authority to do and execute all and every such acts, matters, and things, as the governor or the lieutenant-governor might or could, by virtue of this constitution, do or execute, if they, or either of them, were personally present.
VII. And whereas, the elections appointed to be made by this constitution, on the last Wednesday in May, annually, by the two houses of the legislature, may not be completed on that day, the said elections may be adjourned from day to day, until the same shall be completed. And the order of elections shall be as follows,—the vacancies in the senate, if any, shall first be filled up; the governor and lieutenant-governor shall then be elected, provided there should be no choice of them by the people; and afterwards the two houses shall proceed to the election of the council.
[VIII.] (Transposed. See Chapter VI. p. 262.)
Secretary, Treasurer, Commissary, &c.
I.The secretary, treasurer, and receiver-general, and the commissary-general, notaries-public, and naval officers shall be chosen annually, by joint ballot of the senators and representatives, in one room. And that the citizens of this commonwealth may be assured, from time to time, that the moneys remaining in the public treasury, upon the settlement and liquidation of the public accounts, are their property, no man shall be eligible as treasurer and receiver-general more than five years successively.1
II. The records of the commonwealth shall be kept in the office of the secretary, who NA1 shall attend the governor and council, the senate, and house of representatives in person, or by his deputies, as they shall respectively require.
CHAPTER III. [IV.]
Art. I.The tenure, that all commission officers by law hold2 in their offices, shall be expressed in their respective commissions. All judicial officers, duly appointed, commissioned, and sworn, shall hold their offices during good behavior NA3 provided, nevertheless, the governor, with consent of the council, may remove them upon the address of both houses of the legislature. [And all other officers, appointed by the governor and council, shall hold their offices during pleasure.]
[II.] (Transposed. See Chapter VI. p. 263.)
III. [IV.] In order that the people may not suffer from the long continuance in place of any justice of the peace, who shall fail of discharging the important duties of his office with ability or fidelity, all commissions of justices of the peace shall expire and become void, in the term of seven years from their respective dates; and, upon the expiration of any commission, the governor and council may, if necessary, renew such commissions, or appoint another person,1 as shall most conduce to the well-being of the commonwealth.
IV. [V.] The judges of probate of wills and for granting letters of administration, shall hold their courts at such place or places, on fixed days, as the convenience of the people shall require. And the legislature shall, from time to time, hereafter, appoint such times and places; until which appointments, the said courts shall be holden at the times and places which the respective judges shall direct.
V. [VI.] All causes of marriage, divorce, and alimony, [shall be determined by the senate;] and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.2
CHAPTER IV. [V.]
Delegates to Congress, [Commissions, Writs, Indictments, &c.; Confirmation of Laws, Habeas Corpus, and enacting Style.]
Art. I. The delegates of this commonwealth to the Congress of the United States [of America,] shall, on the second Wednesday of November, if the general court be then sitting, or on the second Wednesday of the session next after,3 be elected annually, by the joint ballot of the senate and house of representatives, assembled together in one room NA4 They shall have commissions under the hand of the governor, and under the great seal of the commonwealth; but may be recalled at any time within the year, and others chosen and commissioned, in the same manner in their stead.5
CHAPTER V. [VI.]
The University at Cambridge, and Encouragement of Literature, &c.
Art. I.Whereas our wise and pious aucestors, so early as the year one thousand six hundred and thirty-six, laid the foundation of Harvard College, in which university many persons of great eminence have by the blessing of God been initiated in those arts and sciences which qualified them for public employments, both in church and state. And whereas the encouragement of arts and sciences, and all good literature, tends to the honor of God, the advantage of the Christian religion, and the great benefit of this and the other United States of America,—it is declared, That the PRESIDENT and FELLOWS of HARVARD COLLEGE, in their corporate capacity, and their successors in that capacity, their officers and servants, shall have, hold, use, exercise, and enjoy, all the powers, authorities, rights, liberties, privileges, immunities, and franchises, which they now have, or are entitled to have, hold, use, exercise, and enjoy; and the same are hereby ratified and confirmed unto them, the said President and Fellows of Harvard College, and to their successors, and to their officers and servants, respectively, forever.
II. And whereas there have been at sundry times, by divers persons, gifts, grants, devises, of houses, lands, tenements, goods, chattels, legacies, and conveyances, heretofore made, either to Harvard College, in Cambridge, in New England, or to the President and Fellows of Harvard College, or to the said College, by some other description, under several charters successively;—IT IS DECLARED, That all the said gifts, grants, devises, legacies, and conveyances, are hereby forever confirmed unto the President and Fellows of Harvard College, and to their successors, in the capacity aforesaid, according to the true intent and meaning of the donor or donors, grantor or grantors, devisor or devisors.
1III. And whereas, by an act of the general court of the colony of Massachusetts Bay, passed in the year one thousand six hundred and forty-two, the governor and deputy governor for the time being, and all the magistrates of that jurisdiction, were, with the president, and a number of the clergy, in the said act described, constituted the overseers of Harvard College. And it being necessary, in this new constitution of government, to ascertain who shall be deemed successors to the said governor, deputy-governor, and magistrates;—IT IS DECLARED, That the Governor, Lieutenant-Governor, Council, and Senate of this Commonwealth, are, and shall be deemed, their successors; who, with the President of Harvard College for the time being, together with the Ministers of the Congregational Churches in the towns of Cambridge, Watertown, Charlestown, Boston, Roxbury, and Dorchester, mentioned in the said act, shall be and hereby are, vested with all the powers and authority belonging, or in any way appertaining to the overseers of Harvard College. Provided, that nothing herein shall be construed to prevent the legislature of this commonwealth from making such alterations in the government of the said university as shall be conducive to its advantage, and the interest of the republic of letters, in as full a manner as might have been done by the legislature of the NA province of the Massachusetts Bay.2
The Encouragement of Literature, &c.
Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties, and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislators and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings, sincerity, good humor, and all social affections and generous sentiments among the people.1
Oaths and Subscriptions; Incompatibility of and Exclusion from Offices; Pecuniary Qualifications; Commissions; Writs; Confirmation of Laws; Habeas Corpus; the Enacting Style; Continuance of Officers; Provision for a future Revisal of the Constitution, &c.
I. (From Chapter III. sect. I. art. 4.) The2 person chosen governor, NA3 and accepting the trust, shall, [in the presence of the two houses, and] before he proceed to execute the duties of his NA1 office, make and subscribe the following declaration, [and take the following oaths, to be administered by the president of the senate,] namely,—
I, A B, [being declared duly elected governor of the commonwealth of Massachusetts,] do [now] declare, that I believe [and profess] the Christian religion, from2 a firm persuasion of its truth; and that I am seised and possessed, in my own right, of the property required by law,3 as one qualification for that office.4NA5 I, A B, do solemnly swear, NA6 [that I bear faith and true allegiance to the commonwealth of Massachusetts;] that I will faithfully and impartially discharge and perform all the duties incumbent on me, as [a governor of this commonwealth,] according to the best of my abilities and understanding, agreeably to the rules and regulations of the constitution, and NA1that I will not attempt or consent to a violation thereof. So help me God.
(From Chapter III. sect. III. art. 8.) [The lieutenant-governor, counsellors, senators, and members of the house of representatives shall, before they enter on the execution of their respective offices, make and subscribe the same declaration, and take the same oath, (mutatis mutandis,) which the governor is directed by this constitution to make, subscribe, and take.]
[And every person appointed to any civil or military office of this commonwealth shall, previous to his entering on the execution of his office, make and subscribe the following declaration, (mutatis mutandis,) namely,—
I, A B, being appointed NA , do now declare, that I believe and profess the Christian religion, from a firm persuasion of the truth thereof.]
[And he shall likewise take an oath of the form following, (mutatis mutandis,)] namely,—
[I, A B, do solemnly swear, that I will bear faith and true allegiance to the commonwealth of Massachusetts; that I will faithfully and impartially discharge and perform all the duties incumbent on me, as NA , according to the best of my abilities and understanding, agreeably to the rules and regulations of the constitution; and that I will not attempt or consent to a violation thereof. So help me God.]
[Provided, notwithstanding, that any person so appointed, who has conscientious scruples relative to taking oaths, may be admitted to make solemn affirmation, under the pains and penalties of perjury, to the truth of the matters contained in the form of the said oath, instead of taking the same.]2
II. (From Chapter IV. art. 2.) [No justice of the superior court of judicature, court of assize, and general jail delivery, shall have a seat in the senate or house of representatives.]1
III. (From Chapter III. sect. II. art. 4.) [“The respective values assigned by the several articles of this constitution to the property necessary to qualify the subjects of this commonwealth to be electors, and also to be elected into the several offices, for the holding of which such qualifications are required, shall always be computed in silver, at the rate of six shillings and eight pence per ounce.”]1
(From Chapter III. sect. II. art. 5.) And it shall be in the power of the legislature, from time to time, to increase such qualifications, NA2 of the persons to be elected to offices, as the circumstances of the commonwealth shall require.
IV. (From Chapter V. art. 2.) All commissions shall be in the name of the commonwealth of Massachusetts, signed by the governor, and attested by the secretary or his deputy, and have the great seal of the commonwealth affixed thereto.
V. (From Chapter V. art. 3.) All writs issuing out of the clerk’s office in any of the courts of law, shall be in the name of the commonwealth of Massachusetts. They shall be under the seal of the court from whence they issue. They shall bear test of the [chief justice, or] first [or senior] justice of the court, to which they shall be returnable, NA1 and be signed by the clerk of such court.”
VI. (From Chapter V. art. 5.) All the [statute] laws [of the province, colony, or state of Massachusetts Bay, the common law, and all such parts of the English or British statutes as] have2 been adopted, used, and approved in the [said] province, colony, or state, NA3 and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution.
VII. (From Chapter V. art. 6.) The privilege and benefit of the writ of habeas corpus shall be enjoyed in this commonwealth in the most free, easy, cheap, expeditious, and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a [short and] limited time, NA4
VIII. (From Chapter V. art. 7.) The enacting style, in making and passing all acts, statutes, and laws, shall be: “Be it enacted, by [his excellency the governor,] the senate, and house of representatives, in general court assembled, and by the authority of the same;” [or “By his honor the lieutenant-governor,” &c.; or “The honorable the council,” &c., as the case may be.]
[CHAPTER VII. AND LAST.]1
[Continuance of Officers, &c.]
IX. To the end there may be no failure of justice, or danger arise to the commonwealth from a change of the form of government, all officers, civil and military, holding commissions under the government and people of Massachusetts Bay in New England, and all other officers of the said government and people, at the time this constitution shall take effect, shall have, hold, use, exercise, and enjoy all the powers and authority to them granted or committed, until other persons shall be appointed in their stead. And all courts of law shall proceed in the execution of the business of their respective departments; and all the executive and legislative officers, bodies, and powers, shall continue in full force, in the enjoyment and exercise of all their trusts, employments, and authority, until the general court, and the supreme and executive officers, under this constitution, are designated, and invested with their respective trusts, powers, and authority.
CONSTITUTIONS OF GOVERNMENT
UNITED STATES OF AMERICA,
AGAINST THE ATTACK OF M. TURGOT, IN HIS LETTER TO DR. PRICE, DATED THE TWENTY-SECOND DAY OF MARCH, 1778.
“All Nature’s difference keeps all Nature’s peace.” Pope
in three volumes.
[1 ]Questions Constitutionelles, par M. de Barante.
[1 ]A letter of the same description was addressed to Jonathan Dickinson Sergeant, of New Jersey, in answer to a similar application, made at the time of the formation of the constitution in that State; but no copy has been found.
[1 ]Vol. iii. pp. 12, 24.
[1 ]These facts are taken from a letter of J. A. to W. D. Williamson, dated 25 February, 1812.
[2 ]“I have heard, that the Hon. John Adams, Esquire, delivered an excellent speech, soon after the meeting of the convention, the purport of which was to show, that it was impossible for human wisdom to form a plan of government that should suit all future emergencies, and that, therefore, periodical revisions were requisite.”
[2 ]The two clauses in Italics transposed.
[4 ]“so interesting a design,”
[5 ]“ordain and establish”
[6 ]PART THE FIRST.
[7 ]“equal.” The language of this article, as reported, is nearly the same with that of the first article of the Bill of Rights of Virginia.
[1 ]“right as well as the”
[2 ]“and season”
[3 ]This clause was not at all satisfactory to the convention. After several days spent in discussion, and the proposal of various amendments, the subject was recommitted to a committee of seven persons, with the Reverend Mr. Alden as the chairman, who reported this substitute, which was finally adopted, in an amended form, and after long debates:—
[1 ]“public teachers aforesaid,”
[3 ]“sect or”
[4 ]“provided there be any on whose instruction he attends;”
[5 ]“towards the support of”
[6 ]“in which the said moneys are raised.”
[7 ]A new clause was appended to this article by the convention, as follows:—
[2 ]This is an amplification of the second article of the Virginia Bill of Rights.
[1 ]The fourth article of the Virginia Bill amplified.
[2 ]The third article of Virginia expanded.
[3 ]“they shall establish by”
[4 ]“and appointments.”
[5 ]“such qualifications as they shall establish by their frame of government,”
[6 ]“And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.”
[2 ]The last three parts of this sentence were placed by the convention in an order exactly reversed.
[3 ]That which makes the fourteenth article in the report now follows, and is incorporated into the twelfth, with a single amendment, above noted.
[1 ]“except in cases in which it has heretofore been otherways used and practised,”
[2 ]This article was recommitted by the convention, when the following substitute was reported and adopted. Much objection was made to it, among the people, as insufficient:—
[2 ]“of the supreme judicial court”
Extract from the Journal of the Convention.
“After long debate, it was moved and seconded, that the sense of the convention be taken upon the word ‘judges,’ in said article; in order to which a question was moved and seconded, namely,—‘whether it be the sense of this convention, that the judges of the supreme judicial court of this commonwealth, ought to be appointed to hold their office during good behavior;’ which, being put, passed in the affirmative, by seventy-eight out of one hundred and thirteen, (ayes 78, noes 35.)
“It was then moved and seconded, that a question be put: whether it is the opinion of this convention, that the judges of the courts of common pleas, in this commonwealth, ought to be appointed to hold their offices during good behavior; which was accordingly put, and passed in the negative, by fifty-seven out of one hundred and nineteen, (ayes 57, noes 62.)”
This decision was reversed on a subsequent day, by sixty-two out of eighty-six, (ayes 62, nays 24.)
[1 ]XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them, to the end it may be a government of laws and not of men.
[2 ]“PART THE SECOND.”
Extract from the Journal.
“On a motion, made and seconded, that the word ‘Massachusetts’ be expunged, and that the word ‘Oceana’ be substituted, the same was put, and passed in the negative.”
[4 ]“Chapter I. The Legislative Power.”
[5 ]The General Court.
[6 ]“The legislative body”
[7 ]“every year
[8 ]“and shall dissolve and be dissolved on the day next preceding the said last Wednesday in May,”
Art. 10. The political year shall begin on the first Wednesday of January, instead of the last Wednesday of May; and the general court shall assemble every year on the said first Wednesday of January, and shall proceed, at that session, to make all the elections, and do all the other acts, which are by the constitution required to be made and done at the session which has heretofore commenced on the last Wednesday of May. And the general court shall be dissolved on the day next preceding the first Wednesday of January, without any proclamation or other act of the governor. But nothing herein contained shall prevent the general court from assembling at such other times as they shall judge necessary, or when called together by the governor. The governor, lieutenant-governor, and counsellors, shall also hold their respective offices for one year next following the first Wednesday of January, and until others are chosen and qualified in their stead.
The meeting for the choice of governor, lieutenant-governor, senators, and representatives, shall be held on the second Monday of November in every year; but meetings may be adjourned, if necessary, for the choice of representatives, to the next day, and again to the next succeeding day, but no further. But in case a second meeting shall be necessary for the choice of representatives, such meetings shall be held on the fourth Monday of the same month of November.
All the other provisions of the constitution respecting the elections and proceedings of the members of the general court, or any other officers or persons whatever, that have reference to the last Wednesday of May as the commencement of the political year, shall be so far altered as to have like reference to the first Wednesday of January.
This article shall go into operation on the first day of October next following the day when the same shall be duly ratified and adopted as an amendment of the constitution; and the governor, lieutenant-governor, counsellors, senators, representatives, and all other state officers who are annually chosen, and who shall be chosen for the current year, when the same shall go into operation, shall hold their respective offices until the first Wednesday of January then next following, and until others are chosen and qualified in their stead, and no longer; and the first election of the governor, lieutenant-governor, senators, and representatives, to be had in virtue of this article, shall be had conformably thereunto, in the month of November following the day on which the same shall be in force and go into operation, pursuant to the foregoing provision.
[1 ]In lieu of this absolute negative, which, in the opinion of Mr. Adams, was an essential part of the plan, the convention adopted the following, as a separate article:—
Extract from the Journal of the Convention.
“The paragraph from the report of the general committee,—namely, ‘That the first magistrate shall have a negative upon all laws, that he may have power to preserve the independence of the executive and judicial departments,’—on a motion made and seconded, was then put, and passed in the negative; thirty-two in seventy-six. (Ayes 32, nays 44.)”
At a subsequent period, the subject came up again, on the report of a committee to whom the article had been referred,—
“When it was moved and seconded, that the report be amended by introducing the following words; namely,—
“ ‘That the governor of this commonwealth have a negative upon all the laws, except those which shall be made and passed for the military defence of the State; and that he have a revision on those, to be conducted by the rules hereafter prescribed.’
“Which being largely debated, when the question was put, the same was determined in the negative; twenty in seventy-three.”
The decline in importance of the State governments, by the subsequent withdrawal of the power over the most material of the public interests into the national sphere, has rendered this question one of inferior interest in Massachusetts. But it is yet agitated in the federal system, and bids fair to continue unsolved for some time to come. Although cheerfully acquiescing in the alteration at the time, the abstract opinion of Mr. Adams, of the absolute necessity of this power to the maintenance of the executive independence, remained unchanged to the last.
In order that the period of five days conceded to the governor for consideration should not be cut off by the delay of the legislature to pass a measure until just before its adjournment, the convention of 1820 proposed, and the people ratified, the following amendment, which now stands as part of the constitution:—
Art. I. If any bill or resolve shall be objected to, and not approved by the governor, and if the general court shall adjourn within five days after the same shall have been laid before the governor for his approbation, and thereby prevent his returning it, with his objections, as provided by the constitution, such bill or resolve shall not become a law, nor have force as such.
[1 ]“or affirmations”
[2 ]“persons resident, and estates lying,”
[3 ]“and also to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities whatsoever, brought into, produced, manufactured, or being within the same;”
[1 ]“while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practised, in order that such.”
[2 ]“and as much oftener as the general court shall order.”
[3 ]The convention of 1820 further enlarged the powers of the general court by the following article, which was ratified, and now stands as the second article of amendment:—
[4 ]By the latest or thirteenth article of amendment adopted under the new power in the legislature, granted in 1820, the basis of the senate has been changed as follows:—
[1 ]“never be less than thirteen; and that no district be so large as to entitle the same to choose more than six senators.”
[3 ]“each town.”
[1 ]“having a freehold estate within the commonwealth, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to give in his vote for the senators for the district of which he is an inhabitant. And, to remove all doubts concerning the meaning of the word ‘inhabitant’ in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within this state, in that town, district, or plantation, where he dwelleth or hath his home.
[1 ]“as pointed out in the constitution;”
[2 ]The mode of electing the senate was very much debated in the convention, and not decided upon without great difference of opinion. But it was acquiesced in, and has remained substantially unchanged to this day. Yet it may be justly objected to as defective in simplicity, and ill adapted to the equal representation as well of property as of public opinion in the commonwealth. The mode now generally pursued in the other states, of apportioning the members into separate districts, and doing away with the contingency of a vacancy, to be filled by a body other than the immediate constituents of the person elected, and often not in political sympathy with them, seems to recommend itself as more direct and consonant with the spirit of republican institutions.
[1 ]“such persons as shall be found to have the highest number of votes in such district, and not elected, amounting to twice the number of senators wanting, if there be so many voted for;”
[2 ]Extract from the Journal. “Moved and seconded, That the word ‘Protestant’ be inserted in lieu of the word ‘Christian,’ which, being put, passed in the negative.
[3 ]“or possessed of personal estate to the value of six hundred pounds at least, or of both to the amount of the same sum,”
[5 ]“at the time of his election he shall be an inhabitant”
[1 ]The following article was added by the convention:—
[2 ]“upon the principle of”
[1 ]The subject of representation seems to have exercised the skill of the convention more than any other portion of the instrument, and it has remained a difficulty from the beginning to this time. The problem has been to unite with the popular and just principle of the representation of townships, a ratio of tolerable equality, and a limitation of numbers sufficient for practical legislation.
[1 ]“Every member”
[1 ]“or any ratable estate to the value of two hundred pounds;”
[2 ]“qualified as aforesaid.”
[4 ]The convention of 1820 proposed the following substitute for this article, which was adopted by the people, and now stands as the third article of amendments:—
[1 ]“be the judge of the returns, elections, and qualifications of its own members, as pointed out in the constitution; shall”
[2 ]“not a member”
[1 ]“or who, in the town where the general court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for any thing said or done in the house; or who shall assault any of them therefor; or who shall assault or arrest any witness or other person ordered to attend the house, in his way in going or returning; or who shall rescue any person arrested by the order of the house.
[3 ]“declare himself to”
[1 ]“and the sheriff shall transmit the same to the secretary’s office, seventeen days at least before the said last Wednesday in May; or the selectmen may”
[2 ]“and the secretary”
[3 ]“all the votes returned,”
[4 ]Here follows in this draught a form of oath for the governor. But this, with several other articles, was transposed by the convention, as appears by the subjoined extract from the journal, February 25, 1780:—“It was then moved and seconded, that there be a distinct chapter in the constitution for the several oaths and tests which have been, or shall be, prescribed to be taken and subscribed by the officers of government, and the two houses of assembly, and also for the list of persons excluded from a seat in either house, and such miscellaneous matters as the convention shall direct to stand in the same.” See under the head of Chapter VI., p. 260.
[1 ]“agreeably to the constitution and the laws of the land.”
[2 ]The several clauses of this article are transposed in the constitution as adopted; but, as the language is not changed, it is not deemed important to note the variations.
[3 ]“necessity, expediency, or”
[4 ]“not exceeding ninety days.”
[1 ]“if necessary,”
[2 ]“or invasion, and also in time of rebellion declared by the legislature to exist,”
[3 ]“these and”
[4 ]“and not otherwise.”
[5 ]“except so far as may be necessary to march or transport them by land or water, for the defence of such part of the state to which they cannot otherwise conveniently have access”
[1 ]The convention, in adopting the following substitute, made what, in the opinion of Mr. Adams, was the second material alteration of the executive power:—
[2 ]“(except such sums as may be appropriated for the redemption of bills of credit or treasurer’s notes, or for the payment of interest arising thereon) but”
[1 ]This provision, establishing a principle of rotation in office, was stricken out by the convention. The practice under the constitution shows that, without any express limitation, but a single case has occurred exceeding seven years, as the longest period that any individual remains governor.
[2 ]“supreme judicial”
[1 ]“And the day and manner of his election, and the qualifications of the electors shall be the same as are required in the election of a governor.”
[2 ]“all the votes returned”
[3 ]“shall have”
[4 ]“the votes of the people”
[6 ]“perform all the duties incumbent upon the governor, and shall”
[1 ]“be annually chosen from among”
[2 ]“And in case there shall not be found, upon the first choice, the whole number of nine persons who will accept a seat in the council, the deficiency shall be made up by the electors aforesaid, from among the people at large; and the number of senators left shall constitute the senate for the year.”
[3 ]“from the senate.”
[4 ]The last or thirteenth amendment of the constitution, adopted in 1840, contains the following modification of the provisions respecting the council:—
[1 ]The convention of 1820 framed an article somewhat changing these modes of appointment, which was approved by the people, and is now the fourth of the amendments:—
[1 ]“may appoint his deputies, for whose conduct he shall be accountable; and he”
[2 ]“shall by law have”
[3 ]“excepting such concerning whom there is different provision made in this constitution;”
[4 ]“Each branch of the legislature”
[5 ]“justices of the supreme judicial court”
[1 ]“same may, if necessary, be renewed, or another person appointed,”
[2 ]This power was early transferred by statute to the supreme judicial court of the state.
[3 ]“sometime in the month of June,”
[4 ]“to serve in congress for one year, to commence on the first Monday in November, then next ensuing.”
[5 ]This article was annulled by the adoption of the federal constitution. Six other articles contained in this chapter were transposed to the sixth chapter, by vote of the convention.
[2 ]In Quincy’s History of Harvard University, the following account of the origin of these three articles is given:—
[1 ]This feature of the constitution of Massachusetts is peculiar, and in one sense original with Mr. Adams. The recognition of the obligation of a state to promote a higher and more extended policy than is embraced in the protection of the temporal interests and political rights of the individual, however understood among enlightened minds, had not at that time been formally made a part of the organic law. Those clauses, since inserted in other state constitutions, which, with more or less of fulness, acknowledge the same principle, are all manifestly taken from this source. The following history of the origin of it is taken from an account given by the author in 1809:—
[1 ]The articles contained in this chapter, as it stands in the constitution, were scattered among the preceding ones, and from them transposed to here.
[3 ]“lieutenant-governor, counsellor, senator, or representative,”
[1 ]“place or”
[2 ]“and have”
[3 ]“the constitution,”
[4 ]“the office or place to which I am elected.”
[5 ]Previous to this second oath, the following is here inserted as a substitute for the greater part of the other forms:—
[6 ]“and affirm,”
[1 ]“the laws of the commonwealth.”
[2 ]“Provided, always, that when any person, chosen or appointed as aforesaid, shall be of the denomination of the people called Quakers, and shall decline taking the said oaths, he shall make his affirmation in the foregoing form, and subscribe the same, omitting the words ‘I do swear,’ ‘and abjure,’ ‘oath or,’ ‘and abjuration,’ in the first oath; and in the second oath, the words ‘swear and;’ and in each of them the words ‘So help me God,’ subjoining instead thereof, ‘This I do under the pains and penalties of perjury.’
[1 ]This article was much discussed in the convention, and gradually enlarged and extended, until it embraced the following restrictions:—
“Art. 8. No judge of any court of this commonwealth, (except the court of sessions,) and no person holding any office under the authority of the United States, (postmasters excepted,) shall, at the same time, hold the office of governor, lieutenant-governor, or counsellor, or have a seat in the senate or house of representatives of this commonwealth; and no judge of any court in this commonwealth, (except the court of sessions,) nor the attorney-general, solicitor-general, county attorney, clerk of any court, sheriff, treasurer and receiver-general, register of probate, nor register of deeds, shall continue to hold his said office, after being elected a member of the Congress of the United States, and accepting that trust; but the acceptance of such trust, by any of the officers aforesaid, shall be deemed and taken to be a resignation of his said office; and judges of the courts of common pleas shall hold no other office under the government of this commonwealth, the office of justice of the peace and militia offices excepted.”
[1 ]“III. In all cases where sums of money are mentioned in this constitution, the value thereof shall be computed in silver, at six shillings and eight pence per ounce.”
[2 ]“as to property,”
[1 ]“who is not a party,”
[2 ]“which have heretofore.”
[3 ]“of Massachusetts Bay,”
[4 ]“not exceeding twelve months.”
[1 ]This caption was stricken out by the convention, and the article was inserted as the ninth in the sixth chapter. The following wholly new articles were added as the tenth and eleventh:—