“That a bill of rights, clearly ascertaining and defining the rights of conscience, and that security of person and property, which every member in the State hath a right to expect from the supreme power thereof, ought to be settled and established, previous to the ratification of any constitution for the State.”
– Theophilus Parsons, 29 Apr. 1778
Don’t always believe what you see on the Internet. That warning holds true to the answer, “Who invented the Bill of Rights?” or, ”Who first coined the phrase, ‘Bill of Rights’?” Each time, either James Madison, Benjamin Franklin or Thomas Jefferson are mentioned.
None of these claims are true!
It was Theophilus Parsons who first created the concept of a “Bill of Rights”. He heavily influenced the creation of the concept by first making the statement, ‘Bill of Rights’ as written in the Essex Result which famously spread throughout the former colonies who were working to create their own constitutions. He created this at the first ‘convention’ first held by the Essex Junto in Newburyport and later held in Ipswich, MA. These gatherings of the governed to recommend and endow constitutional powers are a thorough American concept based on Thomas Jefferson’s Declaration of Independence with the term “consent of the governed”. This was followed by the first constitutional convention that was held in Massachusetts in which Theophilus Parsons had significant influence. He helped in the creation of the Massachusetts Constitution which was the first constitution in the world and predates the U.S. Constitution. Many other states modeled theirs’ after the Massachusetts Constitution of 1780 which has its bill of rights (called the Declaration of Rights) at the beginning of the document. Then, Theophilus Parsons later wrote Conciliatory resolutions and submitted them via John Hancock at the national constitutional convention. They were written for the purpose of consoling two states that were holding out on the ratification of the U.S. Constitution. He did this by offering amendments to the document. Thus, the concept of the Bill of Rights and the giving of birth were soundly in Theophilus Parsons’ hands. Historical records affirm that three of the ten amendments were created by him!
James Madison, more concerned with the Constitution, begrudgingly realized that such amendments if not controlled by him could fray the original document. He pulled the Virginian bill of rights (influenced by the Essex Result) as his source and the rest is history. Years later, he refused to embrace the concept of the Bill of Rights and begrudgingly accepted credit for their creation.
It could be said that because Parsons was born in Byfield, that it was the originator of the bill of rights. Others could claim that since 27 members representing Essex County were represented in Ipswich at the creation of the Essex Result that Essex County is the Birthplace of the Bill of Rights. But the truth is that Theophilus Parsons wrote this document at the corner of Green and Union (later Washington Street) at his law offices and surrounded by other Essex Junto supporters who were largely Newburyporters and whose headquarters was in Newburyport. The Essex Junto* was a powerful arm of the Federalist Party influencing the likes of Alexander Hamilton, George Washington and John Adams. A junto (pronounced hun-to) is a small, usually secret group united for a common interest and the word comes from a variant of junta (hun-ta). The Governor of Massachusetts, John Hancock, used it derisively against the Essex group in resentment for the rejection of the Constitution of 1778.
In a strange twist of fate, you could almost say the British were responsible for the Bill of Rights. Theophilus was serving as a lawyer in Portland, Maine when the British attacked and burned down the city. Parsons fled back to Newburyport, setup a successful law practice and encountered the other members of the junto. Just think what would have happened to America if he had stayed in Maine!
Therefore, Newburyport is the true birthplace of the Bill of Rights and the corner of Green and Washington its fertile soil.
Unfortunately, Chief Justice Parsons’ home was eventually transferred to the local catholic parish. The parochial school now stands where the idea of a Bill of Rights was first written down! It is unknown at this time if his home was demolished or moved.
This claim is so radical that I have added excerpts from history books and literature that confirms my document. I have also attached the entire Essex Result in its entirety.
Please feel free to download the expanded documents and look up the references listed below.
PARSONS, Theophilus, jurist, born in Byfield, Essex County, Massachusetts, 24 February, 1750 died in Boston, Massachusetts, 30 October, 1813. His father, Moses, was a Congregational clergyman and pastor of the church in By-field for more than forty years. Theophilus graduated at Harvard in 1769, and admitted to the bar of Falmouth, Massachusetts (now Portland, Maine), in 1774, but his career was interrupted by the almost total destruction of that town by the British the next year, and he returned to Byfield, where he received the assistance and instruction of Judge Edmund Trowbridge, and laid the foundation of his vast legal learning. Settling in Newburyport, Massachusetts, he acquired a lucrative practice, which gradually embraced all the New England states. He possessed much influence as a Federalist leader and filled a number of important public posts. In 1778 he formed one of the ” Essex Junto,” a body of citizens of Essex county who opposed the adoption of the state constitution that had been previously framed by the Massachusetts legislature. He was the author of the pamphlet called the “Essex Result,” which contributed largely to the rejection of the constitution. This was re-published in the memoir of the author by his son. He was a delegate the next year to the convention that framed the Massachusetts constitution that was finally adopted, and in 1788 to the convention to ratify the constitution of the United States, which he actively supported, he was the author of the proposition that was offered by John Hancock, ratifying the instrument and recommending certain amendments known as the ” Conciliatory resolutions.” He subsequently was occasionally in the state legislature, but took no active part in public affairs, although he remained a consistent Federalist.
Several of the towns in the County of Essex appointed delegates to meet in Convention at Ipswich, to consider of the amendments necessary for the State Constitution, or rather to make the draft for a new one. To this Convention Theophilus Parsons* was a delegate, and was placed on a committee to draft a report on the subject, which was afterwards published under the title of the Essex Result, and had an immense influence on the public mind. This paper was not a mere synopsis of what was needed by Massachusetts at that particular time, but with a comprehensive prescience embodied all those great general principles afterwards incorporated in the best drawn Constitutions of the separate or united States. The true elements of republicanism, divested of all that was visionary or impracticable, were here portrayed in terse and vigorous language; and though containing some few sentiments introduced for the satisfaction of the other members of the committee, it remains an honorable memento of the power and genius of the Newburyport delegate; and at the time produced a more extensive influence than any publication touching the proposed Constitution. A year and a half later, Mr. Parsons labored efficiently in procuring the adoption of that Constitution of Massachusetts which • received the assent of the majority of the people. And again, in 1778, when the plan prepared by Congress for the confederation of the States was presented, Newburyport instructed her representatives to give their voices for it; in this, as in every other measure for the public good during this trying period, giving their influence, men, and money freely to the cause.
– Page 94, History of Newburyport by Euphemia Vale Blake
Among the most active members of the Junto were prominent citizens of Newburyport, — men who from their learning and personal weight of character it was not easy to overthrow ; among them was Theophilus Parsons, (Judge,) John Lowell, (Judge,) Rev. Thomas Cary, Jonathan Jackson, Nathaniel Tracy, William Coombs, Esqrs. &c.; and with these of Newburyport, were associated the most active Federalists of the county. (Page 158 of History of Newburyport by Blake)
At the Constitutional Convention, James Madison had not believed that a bill of rights was required for the new government. However, during the ratification process, several states had called for a bill of rights, and Madison felt it was his obligation, his duty, to propose one. Madison also clearly felt a need to control the amendment process by taking leadership of the effort. New York, when it ratified the Constitution, had called for another constitutional convention, which was now clearly provided for in the Constitution. By drafting a Bill of Rights, Madison headed off that possibility. He stated quite openly:
It is clear that Madison truly thought that a bill of rights was not necessary except to mollify those who thought it was required, to preclude another constitutional convention and to encourage the final two states to ratify the Constitution. In later years, his letters revealed no great pride of authorship. In a letter of 1821 he referred to “those safe, if not necessary, and those politic, if not obligatory, amendments.” In his speech to Congress the best he could say of a bill of rights was that it was “neither improper nor absolutely useless.” This is, certainly, faint praise.
The 1780 Constitution of the Commonwealth of Massachusetts, drafted by John Adams, is the world’s oldest functioning written constitution. It served as a model for the United States Constitution, which was written in 1787 and became effective in 1789. (The Bill of Rights to the United States Constitution were approved in 1789 and became effective in 1791). In turn, the United States Constitution has, particularly in years since World War II, served as a model for the constitutions of many nations, including Germany, Japan, India and South Africa. The United States Constitution has also influenced international agreements and charters, including the Universal Declaration of Human Rights.
In 1915, the President of the American Historical Association stated, “If I were called upon to select a single fact or enterprise which more nearly than any other single thing embraced the significance of the American Revolution . . . I should choose the formation of the Massachusetts Constitution of 1780.
Massachusetts Invents the Constitutional Convention In 1777, the Massachusetts legislature announced that the next legislature would draft a new constitution which it would then submit to the voters for approval. (At this time, John Adams was serving as a diplomat to France; Congress had appointed him to solidify this crucial alliance.)
In reaching its decision, the Massachusetts legislature failed to heed Adams’s recommendation that constitutions ought to be drafted and ratified by special conventions representing the consent of the people. During the fall of 1775, Adams had recommended that the people must “erect the whole Building with their own hands upon the broadest foundation. That this could be done only by conventions of representatives chosen by the People. . . . “
The legislature’s proposed constitution was submitted to, and rejected by, the voters in 1778. Theophilus Parsons, a young lawyer who would later became Chief Justice of the Massachusetts Supreme Judicial Court, led the opposition. In a pamphlet entitled The Essex Result , Parsons, in words demonstrating the influence of John Adams, criticized the proposed constitution for not having been drafted by a body separate from the legislature, for lacking a declaration of rights (and for explicitly condoning slavery), and for failing to provide for the separation of powers among the executive, a bicameral legislature, and the judiciary.
In 1779, the Massachusetts legislature issued a call to the towns for every male inhabitant to elect representatives to form a Convention for the sole purpose of framing a new Constitution, which would then require ratification by two-thirds of the same electorate. Massachusetts thereby invented the concept of convening a convention of the people, separate and apart from the legislature, for the sole purpose of creating a constitution. Massachusetts thus created and clarified the distinction between ordinary legislation and the fundamental law contained in a constitution, which may be created and changed only by “the people.”
- The Declaration of Rights
The Declaration of Rights, which was in part derived from the Bill of Rights in several other state constitutions, sets forth many individual rights which would later be included in the federal Bill of Rights. John Adams considered individual rights so integral to the formation of government that the Massachusetts Declaration of Rights precedes the Frame of Government. (Contrast this with the United States Constitution which sets forth a frame of government, to which the Bill of Rights was added two years later, after prolonged debate.) The Declaration of Rights includes prohibitions against unreasonable searches and seizure, ex post facto laws, and the public taking of private property without just compensation. Protected rights include freedom of the press, the right to petition the government, right to trial by jury, and freedom of worship.
The Declaration of Rights also established an independent judiciary. Adams knew that a free people and a stable government required judges “as free, impartial and independent as the lot of humanity will admit,” who serve “as long as they behave themselves well” and whose salaries are “established by standing laws.” Article XXIX brings to fruition arguments made by Adams in Thoughts on Government and in a series of argumentative essays written in 1773 between Adams and loyalist General William Brattle. In those essays, Adams contended that colonial judges, who served at the pleasure of the Crown, were “far from independent.”
The Declaration of Rights concludes with an inspiring commitment to the creation of a balanced government of separate powers: a government of laws, not men:
In the government of the 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 that it may be a government of laws, and not of men. (Article XXX)
Home of Theophilus Parsons, Washington Street, Near Greene Street
Present day location of the Imamaculate Conception School.
References:
The Massachusetts constitution of 1780: a social compact
By Ronald M. Peters
History of Newburyport
By Euphemia Vale Blake (Page 94)
The Northern Conferderacy according to the Plans of the Essex Junto, 1796-1814
By Charles Raymond Brown
Memoir of Theophilus Parsons
By Theophilus Parsons (His Son)
* The Essex Junto has gone down in history as a black mark in American History due to the confusions between the Essex Junto of pre-Constitution America and the Essex Junto of post-Constitution America. The latter Essex Junto which did not involve Theophilus Parsons (Who went on to be the Chief Justice of the Massachusetts Supreme Court) was angry over the Jay Treaty that gave British trade preferential treatment over the French. This led to an unnamed war between America and France in which ships were seized by both sides it basically ended when the French Revolution occurred. The Essex Junto was vehemently opposed to these ‘treaties’ and threatened to split the union and create a Northern Federation of New England States. (Most of New England did not take them seriously.) When the Jeffersonians took over in Washington who favored the new French Republic, it lead to an escalating conflict with the British and the disastrous Embargo of 1807 that decimated Newburyport and eventually precipitate the War of 1812. The Essex Junto was vehemently against the Embargo and the War and their divisive criticism precipitated accusations of destroying the union and being treasonous. They were cruelly called ‘Blue Lights’ as some were accused of posting signal lights to inform the British which ports to attack. They also succeeded in shattering the Federalist Party which soon thereafter ceased to have influence nationally.
With the death of the Essex Junto, so too died the powerful influence that Newburyport had so nobly held over the nation.
The Essex Result
In Convention of Delegates from the several towns of Lynn, Salem, Danvers, Wenham, Manchester, Gloucester, Ipswich, Newbury-Port, Salisbury, Methuen, Boxford, and Topsfield, holden by adjournment at Ipswich, on the twenty-ninth day of April, one thousand seven hundred and seventy-eight.
Peter Coffin Esq; in the Chair.
The Constitution and form of Government framed by the Convention of this State, was read paragraph by paragraph, and after debate, the following votes were passed.
1. That the present situation of this State renders it best, that the framing of a Constitution therefor, should be postponed ’till the public affairs are in a more peaceable and settled condition.
2. That a bill of rights, clearly ascertaining and defining the rights of conscience, and that security of person and property, which every member in the State hath a right to expect from the supreme power thereof, ought to be settled and established, previous to the ratification of any constitution for the State.
3. That the executive power in any State, ought not to have any share or voice in the legislative power in framing the laws, and therefore, that the second article of the Constitution is liable to exception.
4. That any man who is chosen Governor, ought to be properly qualified in point of property–that the qualification therefor, mentioned in the third article of the Constitution, is not sufficient–nor is the same qualification directed to be ascertained on fixed principles, as it ought to be, on account of the fluctuation of the nominal value of money, and of property.
5. That in every free Republican Government, where the legislative power is rested in an house or houses of representatives, all the members of the State ought to be equally represented.
6. That the mode of representation proposed in the sixth article of the constitution, is not so equal a representation as can reasonably be devised.
7. That therefore the mode of representation in said sixth article is exceptionable.
8. That the representation proposed in said article is also exceptionable, as it will produce an unwieldy assembly.
9. That the mode of election of Senators pointed out in the Constitution is exceptionable.
10. That the rights of conscience, and the security of person and property each member of the State is entitled to, are not ascertained and defined in the Constitution, with a precision sufficient to limit the legislative power–and therefore, that the thirteenth article of the constitution is exceptionable.
11. That the fifteenth article is exceptionable, because the numbers that constitute a quorum in the House of Representatives and Senate, are too small.
12. That the seventeenth article of the constitution is exceptionable, because the supreme executive officer is not vested with proper authority–and because an independence between the executive and legislative body is not preserved.
13. That the nineteenth article is exceptionable, because a due independence is not kept up between the supreme legislative, judicial, and executive powers, nor between any two of them.
14. That the twentieth article is exceptionable, because the supreme executive officer hath a voice, and must be present in that Court, which alone hath authority to try impeachments.
15. That the twenty second article is exceptionable, because the supreme executive power is not preserved distinct from, and independent of, the supreme legislative power.
16. That the twenty third article is exceptionable, because the power of granting pardons is not solely vested in the supreme executive power of the State.
17. That the twenty eighth article is exceptionable, because the delegates for the Continental Congress may be elected by the House of Representatives, when all the Senators may vote against the election of those who are delegated.
18. That the thirty fourth article is exceptionable, because the rights of conscience are not therein clearly defined and ascertained; and further, because the free exercise and enjoyment of religious worship is there said to be allowed to all the protestants in the State, when in fact, that free exercise and enjoyment is the natural and uncontroulable right of every member of the State.
A committee was then appointed to attempt the ascertaining of the true principles of government, applicable to the territory of the Massachusetts-Bay; to state the nonconformity of the constitution proposed by the Convention of this State to those principles, and to delineate the general outlines of a constitution conformable thereto; and to report the same to this Body.
This Convention was then adjourned to the twelfth day of May next, to be holden at Ipswich.
The Convention met pursuant to adjournment, and their committee presented the following report.
The committee appointed by this Convention at their last adjournment, have proceeded upon the service assigned them. With diffidence have they undertaken the several parts of their duty, and the manner in which they have executed them, they submit to the candor of this Body. When they considered of what vast consequence, the forming of a Constitution is to the members of this State, the length of time that is necessary to canvass and digest any proposed plan of government, before the establishment of it, and the consummate coolness, and solemn deliberation which should attend, not only those gentlemen who have, reposed in them, the important trust of delineating the several lines in which the various powers of government are to move, but also all those, who are to form an opinion of the execution of that trust, your committee must be excused when they express a surprise and regret, that so short a time is allowed the freemen inhabiting the territory of the Massachusetts-Bay, to revise and comprehend the form of government proposed to them by the convention of this State, to compare it with those principles on which every free government ought to be founded, and to ascertain it’s conformity or non-conformity thereto. All this is necessary to be done, before a true opinion of it’s merit or demerit can be formed. This opinion is to be certified within a time which, in our apprehension, is much too short for this purpose, and to be certified by a people, who, during that time, have had and will have their minds perplexed and oppressed with a variety of public cares. The committee also beg leave to observe, that the constitution proposed for public approbation, was formed by gentlemen, who, at the same time, had a large share in conducting an important war, and who were employed in carrying into execution almost all the various powers of government.
The committee however proceeded in attempting the task assigned them, and the success of that attempt is now reported.
The reason and understanding of mankind, as well as the experience of all ages, confirm the truth of this proposition, that the benefits resulting to individuals from a free government, conduce much more to their happiness, than the retaining of all their natural rights in a state of nature. These benefits are greater or less, as the form of government, and the mode of exercising the supreme power of the State, are more or less conformable to those principles of equal impartial liberty, which is the property of all men from their birth as the gift of their Creator, compared with the manners and genius of the people, their occupations, customs, modes of thinking, situation, extent of country, and numbers. If the constitution and form of government are wholly repugnant to those principles, wretched are the subjects of that State. They have surrendered a portion of their natural rights, the enjoyment of which was in some degree a blessing, and the consequence is, they find themselves stripped of the remainder. As an anodyne to compose the spirits of these slaves, and to lull them into a passively obedient state, they are told, that tyranny is preferable to no government at all; a proposition which is to be doubted, unless considered under some limitation. Surely a state of nature is more excellent than that, in which men are meanly submissive to the haughty will of an imperious tyrant, whose savage passions are not bounded by the laws of reason, religion, honor, or a regard to his subjects, and the point to which all his movements center, is the gratification of a brutal appetite. As in a state of nature much happiness cannot be enjoyed by individuals, so it has been conformable to the inclinations of almost all men, to enter into a political society so constituted, as to remove the inconveniences they were obliged to submit to in their former state, and, at the same time, to retain all those natural rights, the enjoyment of which would be consistent with the nature of a free government, and the necessary subordination to the supreme power of the state.
To determine what form of government, in any given case, will produce the greatest possible happiness to the subject, is an arduous task, not to be compassed perhaps by any human powers. Some of the greatest geniuses and most learned philosophers of all ages, impelled by their sollicitude to promote the happiness of mankind, have nobly dared to attempt it: and their labours have crowned them with immortality. A Solon, a Lycurgus of Greece, a Numa of Rome are remembered with honor, when the wide extended empires of succeeding tyrants, are hardly important enough to be faintly sketched out on the map, while their superb thrones have long since crumbled into dust. The man who alone undertakes to form a constitution, ought to be an unimpassioned being; one enlightened mind; biassed neither by the lust of power, the allurements of pleasure, nor the glitter of wealth; perfectly acquainted with all the alienable and unalienable rights of mankind; possessed of this grand truth, that all men are born equally free, and that no man ought to surrender any part of his natural rights, without receiving the greatest possible equivalent; and influenced by the impartial principles of rectitude and justice, without partiality for, or prejudice against the interest or professions of any individuals or class of men. He ought also to be master of the histories of all the empires and states which are now existing, and all those which have figured in antiquity, and thereby able to collect and blend their respective excellencies, and avoid those defects which experience hath pointed out. Rousseau, a learned foreigner, a citizen of Geneva, sensible of the importance and difficulty of the subject, thought it impossible for any body of people, to form a free and equal constitution for themselves, in which, every individual should have equal justice done him, and be permitted to enjoy a share of power in the state, equal to what should be enjoyed by any other. Each individual, said he, will struggle, not only to retain all his own natural rights, but to acquire a controul over those of others. Fraud, circumvention, and an union of interest of some classes of people, combined with an inattention to the rights of posterity, will prevail over the principles of equity, justice, and good policy. The Genevans, perhaps the most virtuous republicans now existing, thought like Rousseau. They called the celebrated Calvin to their assistance. He came, and, by their gratitude, have they embalmed his memory.
The freemen inhabiting the territory of the Massachusetts-Bay are now forming a political society for themselves. Perhaps their situation is more favorable in some respects, for erecting a free government, than any other people were ever favored with. That attachment to old forms, which usually embarrasses, has not place amongst them. They have the history and experience of all States before them. Mankind have been toiling through ages for their information; and the philosophers and learned men of antiquity have trimmed their midnight lamps, to transmit to them instruction. We live also in an age, when the principles of political liberty, and the foundation of governments, have been freely canvassed, and fairly settled. Yet some difficulties we have to encounter. Not content with removing our attachment to the old government, perhaps we have contracted a prejudice against some part of it without foundation. The idea of liberty has been held up in so dazzling colours, that some of us may not be willing to submit to that subordination necessary in the freest States. Perhaps we may say further, that we do not consider ourselves united as brothers, with an united interest, but have fancied a clashing of interests amongst the various classes of men, and have acquired a thirst of power, and a wish of domination, over some of the community. We are contending for freedom–Let us all be equally free–It is possible, and it is just. Our interests when candidly considered are one. Let us have a constitution founded, not upon party or prejudice–not one for to-day or to-morrow–but for posterity. Let Esto perpetua be it’s motto. If it is founded in good policy; it will be founded in justice and honesty. Let all ambitious and interested views be discarded, and let regard be had only to the good of the whole, in which the situation and rights of posterity must be considered: and let equal justice be done to all the members of the community; and we thereby imitate our common father, who at our births, dispersed his favors, not only with a liberal, but with an equal hand.
Was it asked, what is the best form of government for the people of the Massachusetts-Bay? we confess it would be a question of infinite importance: and the man who could truly answer it, would merit a statue of gold to his memory, and his fame would be recorded in the annals of late posterity, with unrivalled lustre. The question, however, must be answered, and let it have the best answer we can possibly give it. Was a man to mention a despotic government, his life would be a just forfeit to the resentments of an affronted people. Was he to hint monarchy, he would deservedly be hissed off the stage, and consigned to infamy. A republican form is the only one consonant to the feelings of the generous and brave Americans. Let us now attend to those principles, upon which all republican governments, who boast any degree of political liberty, are founded, and which must enter into the spirit of a FREE republican constitution. For all republics are not Free.
All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of those rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange. Sometimes we shall mention the surrendering of a power to controul our natural rights, which perhaps is speaking with more precision, than when we use the expression of parting with natural rights–but the same thing is intended. Those rights which are unalienable, and of that importance, are called the rights of conscience. We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a controul over it, is an usurper; for no consent can be pleaded to justify the controul, as any consent in this case is void. The alienation of some rights, in themselves alienable, may be also void, if the bargain is of that nature, that no equivalent can be received. Thus, if a man surrender all his alienable rights, without reserving a controul over the supreme power, or a right to resume in certain cases, the surrender is void, for he becomes a slave; and a slave can receive no equivalent. Common equity would set aside this bargain.
When men form themselves into society, and erect a body politic or State, they are to be considered as one moral whole, which is in possession of the supreme power of the State. This supreme power is composed of the powers of each individual collected together, and VOLUNTARILY parted with by him. No individual, in this case, parts with his unalienable rights, the supreme power therefore cannot controul them. Each individual also surrenders the power of controuling his natural alienable rights, ONLY WHEN THE GOOD OF THE WHOLE REQUIRES it. The supreme power therefore can do nothing but what is for the good of the whole; and when it goes beyond this line, it is a power usurped. If the individual receives an equivalent for the right of controul he has parted with, the surrender of that right is valid; if he receives no equivalent, the surrender is void, and the supreme power as it respects him is an usurper. If the supreme power is so directed and executed that he does not enjoy political liberty, it is an illegal power, and he is not bound to obey. Political liberty is by some defined, a liberty of doing whatever is not prohibited by law. The definition is erroneous. A tyrant may govern by laws. The republic’s of Venice and Holland govern by laws, yet those republic’s have degenerated into insupportable tyrannies. Let it be thus defined; political liberty is the right every man in the state has, to do whatever is not prohibited by laws, TO WHICH HE HAS GIVEN HIS CONSENT. This definition is in unison with the feelings of a free people. But to return–If a fundamental principle on which each individual enters into society is, that he shall be bound by no laws but those to which he has consented, he cannot be considered as consenting to any law enacted by a minority: for he parts with the power of controuling his natural rights, only when the good of the whole requires it; and of this there can be but one absolute judge in the State. If the minority can assume the right of judging, there may then be two judges; for however large the minority may be, there must be another body still larger, who have the same claim, if not a better, to the right of absolute determination. If therefore the supreme power should be so modelled and exerted, that a law may be enacted by a minority, the inforcing of that law upon an individual who is opposed to it, is an act of tyranny. Further, as every individual, in entering into the society, parted with a power of controuling his natural rights equal to that parted with by any other, or in other words, as all the members of the society contributed an equal portion of their natural rights, towards the forming of the supreme power, so every member ought to receive equal benefit from, have equal influence in forming, and retain an equal controul over, the supreme power.
It has been observed, that each individual parts with the power of controuling his natural alienable rights, only when the good of the whole requires it, he therefore has remaining, after entering into political society, all his unalienable natural rights, and a part also of his alienable natural rights, provided the good of the whole does not require the sacrifice of them. Over the class of unalienable rights the supreme power hath no controul, and they ought to be clearly defined and ascertained in a BILL OF RIGHTS, previous to the ratification of any constitution. The bill of rights should also contain the equivalent every man receives, as a consideration for the rights he has surrendered. This equivalent consists principally in the security of his person and property, and is also unassailable by the supreme power: for if the equivalent is taken back, those natural rights which were parted with to purchase it, return to the original proprietor, as nothing is more true, than that Allegiance and protection are reciprocal.
The committee also proceeded to consider upon what principles, and in what manner, the supreme power of the state thus composed of the powers of the several individuals thereof, may be formed, modelled, and exerted in a republic, so that every member of the state may enjoy political liberty. This is called by some, the ascertaining of the political law of the state. Let it now be called the forming of a constitution.
The reason why the supreme governor of the world is a rightful and just governor, and entitled to the allegiance of the universe is, because he is infinitely good, wise, and powerful. His goodness prompts him to the best measures, his wisdom qualifies him to discern them, and his power to effect them. In a state likewise, the supreme power is best disposed of, when it is so modelled and balanced, and rested in such hands, that it has the greatest share of goodness, wisdom, and power, which is consistent with the lot of humanity.
That state, (other things being equal) which has reposed the supreme power in the hands of one or a small number of persons, is the most powerful state. An union, expedition, secrecy and dispatch are to be found only here. Where power is to be executed by a large number, there will not probably be either of the requisites just mentioned. Many men have various opinions: and each one will be tenacious of his own, as he thinks it preferable to any other; for when he thinks otherwise, it will cease to be his opinion. From this diversity of opinions results disunion; from disunion, a want of expedition and dispatch. And the larger the number to whom a secret is entrusted, the greater is the probability of it’s disclosure. This inconvenience more fully strikes us when we consider that want of secrecy may prevent the successful execution of any measures, however excellently formed and digested.
But from a single person, or a very small number, we are not to expect that political honesty, and upright regard to the interest of the body of the people, and the civil rights of each individual, which are essential to a good and free constitution. For these qualities we are to go to the body of the people. The voice of the people is said to be the voice of God. No man will be so hardy and presumptuous, as to affirm the truth of that proposition in it’s fullest extent. But if this is considered as the intent of it, that the people have always a disposition to promote their own happiness, and that when they have time to be informed, and the necessary means of information given them, they will be able to determine upon the necessary measures therefor, no man, of a tolerable acquaintance with mankind, will deny the truth of it. The inconvenience and difficulty in forming any free permanent constitution are, that such is the lot of humanity, the bulk of the people, whose happiness is principally to be consulted in forming a constitution, and in legislation, (as they include the majority) are so situated in life, and such are their laudable occupations, that they cannot have time for, nor the means of furnishing themselves with proper information, but must be indebted to some of their fellow subjects for the communication. Happy is the man, and blessings will attend his memory, who shall improve his leisure, and those abilities which heaven has indulged him with, in communicating that true information, and impartial knowledge, to his fellow subjects, which will insure their happiness. But the artful demagogue, who to gratify his ambition or avarice, shall, with the gloss of false patriotism, mislead his countrymen, and meanly snatch from them the golden glorious opportunity of forming a system of political and civil liberty, fraught with blessings for themselves, and remote posterity, what language can paint his demerit? The execrations of ages will be a punishment inadequate; and his name, though ever blackening as it rolls down the stream of time, will not catch its proper hue.
Yet, when we are forming a Constitution, by deductions that follow from established principles, (which is the only good method of forming one for futurity,) we are to look further than to the bulk of the people, for the greatest wisdom, firmness, consistency, and perseverance. These qualities will most probably be found amongst men of education and fortune. From such men we are to expect genius cultivated by reading, and all the various advantages and assistances, which art, and a liberal education aided by wealth, can furnish. From these result learning, a thorough knowledge of the interests of their country, when considered abstractedly, when compared with the neighbouring States, and when with those more remote, and an acquaintance with it’s produce and manufacture, and it’s exports and imports. All these are necessary to be known, in order to determine what is the true interest of any state; and without that interest is ascertained, impossible will it be to discover, whether a variety of certain laws may be beneficial or hurtful. From gentlemen whose private affairs compel them to take care of their own household, and deprive them of leisure, these qualifications are not to be generally expected, whatever class of men they are enrolled in.
Let all these respective excellencies be united. Let the supreme power be so disposed and ballanced, that the laws may have in view the interest of the whole; let them be wisely and consistently framed for that end, and firmly adhered to; and let them be executed with vigour and dispatch.
Before we proceed further, it must be again considered, and kept always in view, that we are not attempting to form a temporary constitution, one adjusted only to our present circumstances. We wish for one founded upon such principles as will secure to us freedom and happiness, however our circumstances may vary. One that will smile amidst the declensions of European and Asiatic empires, and survive the rude storms of time. It is not therefore to be understood, that all the men of fortune of the present day, are men of wisdom and learning, or that they are not. Nor that the bulk of the people, the farmers, the merchants, the tradesmen, and labourers, are all honest and upright, with single views to the public good, or that they are not. In each of the classes there are undoubtedly exceptions, as the rules laid down are general. The proposition is only this. That among gentlemen of education, fortune and leisure, we shall find the largest number of men, possessed of wisdom, learning, and a firmness and consistency of character. That among the bulk of the people, we shall find the greatest share of political honesty, probity, and a regard to the interest of the whole, of which they compose the majority. That wisdom and firmness are not sufficient without good intentions, nor the latter without the former. The conclusion is, let the legislative body unite them all. The former are called the excellencies that result from an aristocracy; the latter, those that result from a democracy.
The supreme power is considered as including the legislative, judicial, and executive powers. The nature and employment of these several powers deserve a distinct attention.
The legislative power is employed in making laws, or prescribing such rules of action to every individual in the state, as the good of the whole requires, to be conformed to by him in his conduct to the governors and governed, with respect both to their persons and property, according to the several relations he stands in. What rules of action the good of the whole requires, can be ascertained only by the majority, for a reason formerly mentioned. Therefore the legislative power must be so formed and exerted, that in prescribing any rule of action, or, in other words, enacting any law, the majority must consent. This may be more evident, when the fundamental condition on which every man enters into society, is considered. No man consented that his natural alienable rights should be wantonly controuled: they were controulable, only when that controul should be subservient to the good of the whole; and that subserviency, from the very nature of government, can be determined but by one absolute judge. The minority cannot be that judge, because then there may be two judges opposed to each other, so that this subserviency remains undetermined. Now the enacting of a law, is only the exercise of this controul over the natural alienable rights of each member of the state; and therefore this law must have the consent of the majority, or be invalid, as being contrary to the fundamental condition of the original social contract. In a state of nature, every man had the sovereign controul over his own person. He might also have, in that state, a qualified property. Whatever lands or chattels he had acquired the peaceable possession of, were exclusively his, by right of occupancy or possession. For while they were unpossessed he had a right to them equally with any other man, and therefore could not be disturbed in his possession, without being injured; for no man could lawfully dispossess him, without having a better right, which no man had. Over this qualified property every man in a state of nature had also a sovereign controul. And in entering into political society, he surrendered this right of controul over his person and property, (with an exception to the rights of conscience) to the supreme legislative power, to be exercised by that power, when the good of the whole demanded it. This was all the right he could surrender, being all the alienable right of which he was possessed. The only objects of legislation therefore, are the person and property of the individuals which compose the state. If the law affects only the persons of the members, the consent of a majority of any members is sufficient. If the law affects the property only, the consent of those who hold a majority of the property is enough. If it affects, (as it will very frequently, if not always,) both the person and property, the consent of a majority of the members, and of those members also, who hold a majority of the property is necessary. If the consent of the latter is not obtained, their interest is taken from them against their consent, and their boasted security of property is vanished. Those who make the law, in this case give and grant what is not theirs. The law, in it’s principles, becomes a second stamp act. Lord Chatham very finely ridiculed the British house of commons upon that principle. “You can give and grant, said he, only your own. Here you give and grant, what? The property of the Americans.” The people of the Masssachusetts-Bay then thought his Lordship’s ridicule well pointed. And would they be willing to merit the same? Certainly they will agree in the principle, should they mistake the application. The laws of the province of Massachusetts-Bay adopted the same principle, and very happily applied it. As the votes of proprietors of common and undivided lands in their meetings, can affect only their property, therefore it is enacted, that in ascertaining the majority, the votes shall be collected according to the respective interests of the proprietors. If each member, without regard to his property, has equal influence in legislation with any other, it follows, that some members enjoy greater benefits and powers in legislation than others, when these benefits and powers are compared with the rights parted with to purchase them. For the property-holder parts with the controul over his person, as well as he who hath no property, and the former also parts with the controul over his property, of which the latter is destitute. Therefore to constitute a perfect law in a free state, affecting the persons and property of the members, it is necessary that the law be for the good of the whole, which is to be determined by a majority of the members, and that majority should include those, who possess a major part of the property in the state.
The judicial power follows next after the legislative power; for it cannot act, until after laws are prescribed. Every wise legislator annexes a sanction to his laws, which is most commonly penal, (that is) a punishment either corporal or pecuniary, to be inflicted on the member who shall infringe them. It is the part of the judicial power (which in this territory has always been, and always ought to be, a court and jury) to ascertain the member who hath broken the law. Every man is to be presumed innocent, until the judicial power hath determined him guilty. When that decision is known, the law annexes the punishment, and the offender is turned over to the executive arm, by whom it is inflicted on him. The judicial power hath also to determine what legal contracts have been broken, and what member hath been injured by a violation of the law, to consider the damages that have been sustained, and to ascertain the recompense. The executive power takes care that this recompense is paid.
The executive power is sometimes divided into the external executive, and internal executive. The former comprehends war, peace, the sending and receiving ambassadors, and whatever concerns the transactions of the state with any other independent state. The confederation of the United States of America hath lopped off this branch of the executive, and placed it in Congress. We have therefore only to consider the internal executive power, which is employed in the peace, security and protection of the subject and his property, and in the defence of the state. The executive power is to marshal and command her militia and armies for her defence, to enforce the law, and to carry into execution all the orders of the legislative powers.
A little attention to the subject will convince us, that these three powers ought to be in different hands, and independent of one another, and so ballanced, and each having that check upon the other, that their independence shall be preserved–If the three powers are united, the government will be absolute, whether these powers are in the hands of one or a large number. The same party will be the legislator, accuser, judge and executioner; and what probability will an accused person have of an acquittal, however innocent he may be, when his judge will be also a party.
If the legislative and judicial powers are united, the maker of the law will also interpret it; and the law may then speak a language, dictated by the whims, the caprice, or the prejudice of the judge, with impunity to him–And what people are so unhappy as those, whose laws are uncertain. It will also be in the breast of the judge, when grasping after his prey, to make a retrospective law, which shall bring the unhappy offender within it; and this also he can do with impunity–The subject can have no peaceable remedy–The judge will try himself, and an acquittal is the certain consequence. He has it also in his power to enact any law, which may shelter him from deserved vengeance.
Should the executive and legislative powers be united, mischiefs the most terrible would follow. The executive would enact those laws it pleased to execute, and no others–The judicial power would be set aside as inconvenient and tardy–The security and protection of the subject would be a shadow–The executive power would make itself absolute, and the government end in a tyranny–Lewis the eleventh of France, by cunning and treachery compleated the union of the executive and legislative powers of that kingdom, and upon that union established a system of tyranny. France was formerly under a free government.
The assembly or representatives of the united states of Holland, exercise the executive and legislative powers, and the government there is absolute.
Should the executive and judicial powers be united, the subject would then have no permanent security of his person and property. The executive power would interpret the laws and bend them to his will; and, as he is the judge, he may leap over them by artful constructions, and gratify, with impunity, the most rapacious passions. Perhaps no cause in any state has contributed more to promote internal convulsions, and to stain the scaffold with it’s best blood, than this unhappy union. And it is an union which the executive power in all states, hath attempted to form: if that could not be compassed, to make the judicial power dependent upon it. Indeed the dependence of any of these powers upon either of the others, which in all states has always been attempted by one or the other of them, has so often been productive of such calamities, and of the shedding of such oceans of blood, that the page of history seems to be one continued tale of human wretchedness.
The following principles now seem to be established.
1. That the supreme power is limited, and cannot controul the unalienable rights of mankind, nor resume the equivalent (that is, the security of person and property) which each individual receives, as a consideration for the alienable rights he parted with in entering into political society.
2. That these unalienable rights, and this equivalent, are to be clearly defined and ascertained in a BILL OF RIGHTS, previous to the ratification of any constitution.
3. That the supreme power should be so formed and modelled, as to exert the greatest possible power, wisdom, and goodness.
4. That the legislative, judicial, and executive powers, are to be lodged in different hands, that each branch is to be independent, and further, to be so ballanced, and be able to exert such checks upon the others, as will preserve it from a dependence on, or an union with them.
5. That government can exert the greatest power when it’s supreme authority is vested in the hands of one or a few.
6. That the laws will be made with the greatest wisdom, and best intentions, when men, of all the several classes in the state concur in the enacting of them.
7. That a government which is so constituted, that it cannot afford a degree of political liberty nearly equal to all it’s members, is not founded upon principles of freedom and justice, and where any member enjoys no degree of political liberty, the government, so far as it respects him, is a tyranny, for he is controuled by laws to which he has never consented.
8. That the legislative power of a state hath no authority to controul the natural rights of any of it’s members, unless the good of the whole requires it.
9. That a majority of the state is the only judge when the general good does require it.
10. That where the legislative power of the state is so formed, that a law may be enacted by the minority, each member of the state does not enjoy political liberty. And
11. That in a free government, a law affecting the person and property of it’s members, is not valid, unless it has the consent of a majority of the members, which majority should include those, who hold a major part of the property in the state.