Tuesday, February 5, 1788.
To the Massachusetts Convention.
Gentlemen,
In my last address I ascertained, from historical records, the following principles: that, in the original state of government, the whole power resides in the whole body of the nation, that when a people appoint certain persons to govern them, they delegate their whole power; that a constitution is not in itself a bill of rights; and that, whatever is the form of government, a bill of rights is essential to the security of the persons and property of the people. It is an idea favourable to the interest of mankind at large, that government is founded in compact. Several instances may be produced of it, but none is more remarkable than our own. In general, I have chosen to apply to such facts as are in the reach of my readers. For this purpose I have chiefly confined myself to examples drawn from the history of our own country, and to the Old Testament. It is in the power of every reader to verify examples thus substantiated. Even in the remarkable arguments on the fourth section, relative to the power over election I was far from stating the worst of it, as it respects the adverse party. A gentleman, respectable in many points, but more especially for his systematick and perspicuous reasoning in his profession, has repeatedly stated to the Convention, among his reasons in favour of that section, that the Rhode Island assembly have for a considerable time past had a bill lying on their [pg 116] table for altering the manner of elections for representatives in that state.[29] He has stated it with all the zeal of a person who believed his argument to be a good one. But surely a bill lying on a table can never be considered as any more than an intention to pass it, and nobody pretends that it ever actually did pass. It is in strictness only the intention of a part of the assembly, for nobody can aver that it ever will pass. I write not with an intention to deceive, but that the whole argument may be stated fairly. Much eloquence and ingenuity have been employed in shewing that side of the argument in favor of the proposed constitution, but it ought to be considered that if we accept it upon mere verbal explanations, we shall find ourselves deceived. I appeal to the knowledge of every one, if it does not frequently happen, that a law is interpreted in practice very differently from the intention of the legislature. Hence arises the necessity of acts to amend and explain former acts. This is not an inconvenience in the common and ordinary business of legislation, but is a great one in a constitution. A constitution is a legislative act of the whole people. It is an excellence that it should be permanent, otherwise we are exposed to perpetual insecurity from the fluctuation of government. We should be in the same situation as under absolute government, sometimes exposed to the pressure of greater, and sometimes unprotected by the weaker power in the sovereign.
It is now generally understood that it is for the security of the people that the powers of the government should be lodged in different branches. By this means publick business will go on when they all agree, and stop when they disagree. The advantage of checks in government is thus manifested where the concurrence of different branches is necessary to the same act, but the advantage of a division of business is advantageous in other respects. As in every extensive empire, local laws are necessary to suit the different interests, no single legislature is adequate to the business. All human capacities are limited to a narrow space, and as no individual is capable of practising a great variety of trades, no single legislature is capable of managing all the [pg 117] variety of national and state concerns. Even if a legislature was capable of it, the business of the judicial department must, from the same cause, be slovenly done. Hence arises the necessity of a division of the business into national and local. Each department ought to have all the powers necessary for executing its own business, under such limitations as tend to secure us from any inequality in the operations of government. I know it is often asked against whom in a government by representation is a bill of rights to secure us? I answer, that such a government is indeed a government by ourselves; but as a just government protects all alike, it is necessary that the sober and industrious part of the community should be defended from the rapacity and violence of the vicious and idle. A bill of rights, therefore, ought to set forth the purposes for which the compact is made, and serves to secure the minority against the usurpation and tyranny of the majority. It is a just observation of his excellency, doctor Adams, in his learned defence of the American constitutions that unbridled passions produce the same effect, whether in a king, nobility, or a mob. The experience of all mankind has proved the prevalence of a disposition to use power wantonly. It is therefore as necessary to defend an individual against the majority in a republick as against the king in a monarchy. Our state constitution has wisely guarded this point. The present confederation has also done it.
I confess that I have yet seen no sufficient reason for not amending the confederation, though I have weighed the argument with candour; I think it would be much easier to amend it than the new constitution. But this is a point on which men of very respectable character differ. There is another point in which nearly all agree, and that is, that the new constitution would be better in many respects if it had been differently framed. Here the question is not so much what the amendments ought to be, as in what manner they shall be made; whether they shall be made as conditions of our accepting the constitution, or whether we shall first accept it, and then try to amend it. I can hardly conceive that it should seriously be made a question. If the first question, whether we will receive it as it stands, be [pg 118] negatived, as it undoubtedly ought to be, while the conviction remains that amendments are necessary; the next question will be, what amendments shall be made? Here permit an individual, who glories in being a citizen of Massachusetts, and who is anxious that her character may remain undiminished, to propose such articles as appear to him necessary for preserving the rights of the state. He means not to retract anything with regard to the expediency of amending the old confederation, and rejecting the new one totally; but only to make a proposition which he thinks comprehends the general idea of all parties. If the new constitution means no more than the friends of it acknowledge, they certainly can have no objection to affixing a declaration in favor of the rights of states and of citizens, especially as a majority of the states have not yet voted upon it.
“Resolved, that the constitution lately proposed for the United States be received only upon the following conditions:
“1. Congress shall have no power to alter the time, place or manner of elections, nor any authority over elections, otherwise than by fining such state as shall neglect to send its representatives or senators, a sum not exceeding the expense of supporting its representatives or senators one year.
“2. Congress shall not have the power of regulating the intercourse between the states, nor to levy any direct tax on polls or estates, or any excise.
“3. Congress shall not have power to try causes between a state and citizens of another state, nor between citizens of different states; nor to make any laws relative to the transfer of property between those parties, nor any other matter which shall originate in the body of any state.