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7. Joseph Story on Representation ^*

Justice Story and Daniel Webster delivered the most memorable speeches in the convention. Both occurred on the representation question, Story’s on December 14, Webster’s the following day, and both defended the taxation basis of the senate in particular. They are interesting from the standpoint of political theory. The idiom and doctrine are conservative, even faintly European. Story’s speech, more than Webster’s, exhibits that calm, dispassionate, and deliberative appeal to men’s reason that had, in his opinion, “so powerful and wholesome an effect” upon the delegates. Story’s work in the convention added significantly to his already considerable reputation. For the past decade he had been a justice of the United States Supreme Court, to which he had been appointed by President Madison, and in that time he had shrugged off the Jeffersonian Republicanism of his youth. Only forty-one years of age in 1820, his remarkable career as a justice and legal scholar still lay ahead of him. Unlike Webster, Story was no orator. He prepared his speech, read it, and furnished a copy to the reporter of the debates.

… It is necessary for us for a moment to look at what is the true state of the question now before us. The proposition of my friend from Roxbury [Mr. Dearborn], is to make population the basis for apportioning the senate, and this proposition is to be followed up,—as the gentleman, with the candor and frankness which has always marked his character, has intimated—with another, to apportion the house of representatives in the same manner. The plan is certainly entitled to the praise of consistency and uniformity. It does not assume in one house a principle which it deserts in another. Those who contend on the other hand, for the basis of valuation, propose nothing new, but stand upon the letter and spirit of the present constitution.

Here then there is no attempt to introduce a new principle in favor of wealth into the constitution. There is no attempt to discriminate between the poor and the rich. There is no attempt to raise the pecuniary qualifications of the electors or elected—to give to the rich man two votes and to the poor man but one. The qualifications are to remain as before, and the rich and the poor, and the high and the low are to meet at the polls upon the same level of equality. And yet much has been introduced into the debate about the rights of the rich and the poor, and the oppression of the one by the elevation of the other. This distinction between the rich and poor, I must be permitted to say, is an odious distinction, and not founded in the merits of the case before us. I agree that the poor man is not to be deprived of his rights any more than the rich man, nor have I as yet heard of any proposition to that effect; and if it should come, I should feel myself bound to resist it. The poor man ought to be protected in his rights, not merely of life and liberty, but of his scanty and hard earnings. I do not deny that the poor man may possess as much patriotism as the rich; but it is unjust to suppose that he necessarily possesses more. Patriotism and poverty do not necessarily march hand in hand; nor is wealth that monster which some imaginations have depicted, with a heart of adamant and a sceptre of iron, surrounded with scorpions stinging every one within its reach, and planting its feet of oppression upon the needy and the dependent. Such a representation is not just with reference to our country. There is no class of very rich men in this happy land, whose wealth is fenced in by hereditary titles, by entails, and by permanent elevation to the highest offices. Here there is a gradation of property from the highest to the lowest, and all feel an equal interest in its preservation. If, upon the principle of valuation, the rich man in a district, which pays a high tax, votes for a larger number of senators, the poor man in the same district enjoys the same distinction. There is not then a conflict, but a harmony of interests between them; nor under the present constitution has any discontent or grievance been seriously felt from this source.

When I look around and consider the blessings which property bestows, I cannot persuade myself that gentlemen are serious in their views, that it does not deserve our utmost protection. I do not here speak of your opulent and munificent citizens, whose wealth has spread itself into a thousand channels of charity and public benevolence. I speak not of those who rear temples to the service of the most high God. I speak not of those who build your hospitals, where want, and misery, and sickness, the lame, the halt and the blind, the afflicted in body and in spirit, may find a refuge from their evils, and the voice of solace and consolation, administering food and medicine and kindness. I speak not of those, who build asylums for the insane, for the ruins of noble minds, for the broken hearted and the melancholy, for those whom Providence has afflicted with the greatest of calamities, the loss of reason, and too often the loss of happiness—within whose walls the screams of the maniac may die away in peace, and the sighs of the wretched be soothed into tranquillity. I speak not of these, not because they are not worthy of all praise; but because I would dwell rather on those general blessings, which prosperity diffuses through the whole mass of the community. Who is there that has not a friend or relative in distress, looking up to him for assistance? Who is there that is not called upon to administer to the sick and the suffering, to those who are in the depth of poverty and distress, to those of his own household, or to the stranger beside the gate? The circle of kindness commences with the humblest, and extends wider and wider as we rise to the highest in society, each person administering in his own way to the wants of those around him. It is thus that property becomes the source of comforts of every kind, and dispenses its blessings in every form. In this way it conduces to the public good by promoting private happiness; and every man from the humblest, possessing property, to the highest in the State, contributes his proportion to the general mass of comfort. The man without any property may desire to do the same; but he is necessarily shut out from this most interesting charity. It is in this view that I consider property as the source of all the comforts and advantages we enjoy, and every man, from him who possesses but a single dollar up to him who possesses the greatest fortune, is equally interested in its security and its preservation. Government indeed stands on a combination of interests and circumstances. It must always be a question of the highest moment, how the property-holding part of the community may be sustained against the inroads of poverty and vice. Poverty leads to temptation, and temptation often leads to vice, and vice to military despotism. The rights of man are never heard in a despot’s palace. The very rich man, whose estate consists in personal property, may escape from such evils by flying for refuge to some foreign land. But the hardy yeoman, the owner of a few acres of the soil, and supported by it, cannot leave his home without becoming a wanderer on the face of the earth. In the preservation of property and virtue, he has, therefore, the deepest and most permanent interest.

Gentlemen have argued as if personal rights only were the proper objects of government. But what, I would ask, is life worth, if a man cannot eat in security the bread earned by his own industry? If he is not permitted to transmit to his children the little inheritance which his affection has destined for their use? What enables us to diffuse education among all the classes of society, but property? Are not our public schools, the distinguishing blessing of our land, sustained by its patronage? I will say no more about the rich and the poor. There is no parallel to be run between them, founded on permanent constitutional distinctions. The rich help the poor, and the poor in turn administer to the rich. In our country, the highest man is not above the people; the humblest is not below the people. If the rich may be said to have additional protection, they have not additional power. Nor does wealth here form a permanent distinction of families. Those who are wealthy today pass to the tomb, and their children divide their estates. Property thus is divided quite as fast as it accumulates. No family can, without its own exertions, stand erect for a long time under our statute of descents and distributions, the only true and legitimate agrarian law. It silently and quietly dissolves the mass heaped up by the toil and diligence of a long life of enterprise and industry. Property is continually changing like the waves of the sea. One wave rises and is soon swallowed up in the vast abyss and seen no more. Another rises, and having reached its destined limits, falls gently away, and is succeeded by yet another, which, in its turn, breaks and dies away silently on the shore. The richest man among us may be brought down to the humblest level; and the child with scarcely clothes to cover his nakedness, may rise to the highest office in our government. And the poor man, while he rocks his infant on his knees, may justly indulge the consolation, that if he possess talents and virtue, there is no office beyond the reach of his honorable ambition. It is a mistaken theory, that government is founded for one object only. It is organized for the protection of life, liberty and property, and all the comforts of society—to enable us to indulge in our domestic affections, and quietly to enjoy our homes and our firesides… .

… It has been also suggested, that great property, of itself, gives great influence, and that it is unnecessary that the constitution should secure to it more. I have already stated what I conceive to be the true answer; that a representation in the senate founded on valuation, is not a representation of property in the abstract. It gives no greater power in any district to the rich than to the poor. The poor voters in Suffolk may, if they please, elect six senators into the senate; and so throughout the Commonwealth, the senators of every other district may, in like manner, be chosen by the same class of voters. The basis of valuation was undoubtedly adopted by the framers of our constitution, with reference to a just system of checks and balances, and the principles of rational liberty. Representation and taxation was the doctrine of those days—a doctrine for which our fathers fought and bled, in the battles of the revolution. Upon the basis of valuation, property is not directly represented; but property in the aggregate, combined with personal rights—where the greatest burthen of taxation falls, there the largest representation is apportioned; but still the choice depends upon the will of the majority of voters, and not upon that of the wealthier class within the district. There is a peculiar beauty in our system of taxation and equalizing the public burthens. Our governor, counsellors, senators, judges, and other public officers are paid out of the public treasury,—our representatives by their respective towns. The former are officers for the benefit of the whole Commonwealth; but the right of sending representatives is a privilege granted to corporations, and, as the more immediate agents of such corporations, they are paid by them. The travel however of the representatives is paid out of the public treasury, with the view that no unjust advantage should arise to any part of the Commonwealth from its greater proximity to the capital. Thus the principle of equalizing burthens is exemplified. But even if it were true that the representation in the senate were founded on property, I would respectfully ask gentlemen, if its natural influence would be weakened or destroyed by assuming the basis of population. I presume not. It would still be left to exert that influence over friends and dependents in the same manner that it now does; so that the change would not in the slightest degree aid the asserted object, I mean the suppression of the supposed predominating authority of wealth.

Gentlemen have argued, as though it was universally conceded as a political axiom, that population is in all cases and under all circumstances the safest and best basis of representation. I beg leave to doubt the proposition. Cases may be easily supposed, in which, from the peculiar state of society, such a basis would be universally deemed unsafe and injurious. Take a state where the population is such as that of Manchester in England, (and some states in our Union have not so large a population) where there are five or ten thousand wealthy persons, and ninety or one hundred thousand of artizans reduced to a state of vice and poverty and wretchedness, which leave them exposed to the most dangerous political excitements. I speak of them, not as I know, but as the language of British statesmen and parliamentary proceedings exhibit them. Who would found a representation on such a population, unless he intended all property should be a booty to be divided among plunderers? A different state of things exists in our happy Commonwealth, and no such dangers will here arise from assuming population as the basis of representation. But still the doctrine, in the latitude now contended for, is not well founded. What should be the basis on which representation should be founded, is not an abstract theoretical question, but depends upon the habits, manners, character and institutions of the people, who are to be represented. It is a question of political policy, which every nation must decide for itself, with reference to its own wants and circumstances… .

… To the plan of the gentleman from Roxbury [Mr. Dearborn] two objections existed. The first was, that it destroyed the system of checks and balances in the government, a system which has been approved by the wisdom of ages. The value of this system has been forcibly illustrated by the gentleman from Boston [Mr. Prescott], in the extract which he read from the remarks of Mr. Jefferson on the constitution of Virginia.¹ I will not therefore dwell on this objection. The next objection is that it destroys all county lines and distinctions, and breaks all habits and associations connected with them. They might thus be broken up, but it was by tearing asunder some of the strongest bonds of society. The people of each county are drawn together by their necessary attendance upon the county courts, and by their county interests and associations. There is a common feeling diffused among the mass of the population, which extends to, but never passes the boundary of each county; and thus these communities become minor states. These are valuable associations, and I am not prepared to say that they ought to be given up altogether. The system of the gentleman from Roxbury, however, not only obliterates them, but at the same time is supposed to affect the interests and corporate representation of the towns—a representation which, with all its inconveniences, possesses intrinsic value. It appears to me that the system of the select committee, combining valuation as the basis of the senate with corporate representation of the towns as the basis of the house, has, both as a system of checks and balances, and convenient and practical distribution of powers, some advantages over that now under discussion… .

… After all, what will be the effect of changing the basis of the senate from valuation to that of population? It will take three senators from Suffolk, give two more senators to the old county of Hampshire, leaving Berkshire and Plymouth to struggle for one more, and Norfolk and Bristol to contend for another, the disposition of which may be doubtful. All the rest of the Commonwealth will remain precisely in the same situation, whether we adopt the one basis or the other. Yet even this change will not produce any serious practical result, if we look forward twenty years. Suffolk has increased within the last ten years, ten thousand in the number of its inhabitants, that is to say, one quarter part of its population; a much greater ratio of increase than the rest of the State. Population will probably from the like causes continue to increase on the seaboard, or at least in the capital, from its great attractions, in a ratio quite as great beyond that of the interior. So that in a short time the difference of the two systems will be greatly diminished, and perhaps finally the inland counties will gain more by the restriction of the districts to six senators than they will now gain by the basis of population. In fifty years Suffolk upon this basis may entitle itself not to six only, but to eight.

Now I would beg gentlemen to consider, if in this view of the subject a change in the basis of the senate can be useful? The constitution has gone through a trial of forty years in times of great difficulty and danger. It has passed through the embarrassments of the revolutionary war, through the troubles and discontents of 1787 and 1788, through collisions of parties unexampled in our history for violence and zeal, through a second war marked with no ordinary scenes of division and danger, and it has come out of these trials pure and bright and spotless. No practical inconvenience has been felt or attempted to be pointed out by any gentleman in the present system, during this long period. Is it then wise, or just, or politic to exchange the results of our own experience for any theory, however plausible, that stands opposed to that experience, for a theory that possibly may do as well?

A few words as to the proposition of the gentleman from Worcester [Mr. Lincoln] for representation in the house. It seems to me—I hope the gentleman will pardon the expression—inconsistent not only with his own doctrine as to the basis of population, but inconsistent with the reasoning, by which he endeavored to sustain that doctrine. The gentleman considers population as the only just basis of representation in the senate. Why then, I ask, is it not as just as the basis for the house? Here the gentleman deserts his favorite principle, and insists on representation of towns as corporations. He alleges that in this way the system of checks and balances, (which the gentleman approves) is supported. But it seems to me that it has not any merit as a check; for the aggregate population of the county will express generally the same voice as the aggregate representatives of the towns. The gentleman has said that the poor man in Berkshire votes only for two senators, while the poor man in Suffolk votes for six. Is there not the same objection against the system of representation now existing as to the house, and against that proposed by the gentleman himself? A voter in Chelsea now votes for but one representative, while his neighbor, a voter in Charles-town, votes for six. Upon the gentleman’s own plan there would be a like inequality. He presses us also in reference to his plan of representation in the house, with the argument, that it is not unequal because we are represented, if we have a single representative; and he says he distinguishes between the right to send one and to send many representatives. The former is vital to a free government—the latter not. One representative in the British Parliament would have probably prevented the American revolution. Be it so. But if the doctrine be sound, does it not plainly apply as well to the senate as the house? If it be not unequal or unjust in the house, how can it be so in the senate? Is not Berkshire with its two senators, and Barnstable with its one senator, and Worcester with its four senators, upon this principle just as fully represented in the senate as Suffolk with its six senators? The argument of the gentleman may therefore be thrown back upon himself… .

… I beg however for a moment to ask the attention of the committee to the gross inequalities of the plan of the gentleman from Worcester respecting the house of representatives. There are 298 towns in the State, each of which is to send one representative. And upon this plan the whole number of representatives will be 334. There are but 24 towns, which would be entitled to send more than one representative. These 24 towns with a population of 146,000 would send 58 representatives, or only one upon an average for every 2526 inhabitants, while the remaining 274 towns with a population of 313,000 would send 274 representatives, or one for every 1144 inhabitants. I lay not the venue here or there in the Commonwealth, in the county of Worcester or the county of Essex; but such would be the result throughout the whole Commonwealth taken in the aggregate of its population. Salem would send one representative for every 3130 inhabitants and Boston one for every 4200 inhabitants, while every town but the 24 largest would send one for every 1144 inhabitants! What then becomes of the favorite doctrine of the basis of population? I would ask the gentleman in his own emphatic language, is not this system unjust, unequal and cruel? If it be equal, it is so by some political arithmetic, which I have never learned and am incapable of comprehending.

A few words upon the plan of the select committee, and I have done. Sir, I am not entitled to any of the merit, if there be any, in that plan. My own was to preserve the present basis of the senate, not because I placed any peculiar stress on the basis of valuation; but because I deemed it all-important to retain some element that might maintain a salutary check between the two houses. My own plan for the house of representatives was representation founded on the basis of population in districts, according to the system proposed by the gentleman from Northampton [Mr. Lyman]. Finding that this plan was not acceptable to a majority of the committee I acquiesced in the plan reported by it. I have learned that we must not, in questions of government, stand upon abstract principles; but must content ourselves with practicable good. I do not pretend to think, nor do any of its advocates think, that the system of the select committee is perfect; but it will cure some defects in our present system which are of great and increasing importance. I have always viewed the representation in the house under the present constitution, as a most serious evil, and alarming to the future peace and happiness of the State. My dread has never been of the senate, but of that multitudinous assembly, which has been seen within these walls, and may again be seen if times of political excitement should occur. The more numerous the body the greater the danger from its movements in times, when it cannot or will not deliberate. I came here therefore willing and ready to make sacrifices to accomplish an essential reduction in that body. It was the only subject relative to the constitution on which I have always had a decided and earnest opinion. It was my fortune for some years to have a seat in our house of representatives; and for a short time to preside over its sittings, at a period when it was most numerous, and under the most powerful excitements. I am sorry to say it, but such is my opinion, that in no proper sense could it be called a deliberative assembly. From the excess of numbers deliberation became almost impossible; and but for the good sense and discretion of those who usually led in the debates, it would have been impracticable to have transacted business with anything like accuracy or safety. That serious public mischiefs did not arise from the necessary hurry and difficulty of the legislative business is to be accounted for only from the mutual forbearance and kindness, of those who enjoyed the confidence of the respective parties. If the State should go on in its population we might hereafter have 800 or 900 representatives according to the present system; and in times of public discontent, all the barriers of legislation may be broken down and the government itself be subverted. I wish most deeply and earnestly to preserve to my native State a deliberative legislature, where the sound judgment, and discretion, and sagacity of its best citizens may be felt and heard and understood at all times and under all circumstances. I should feel the liberties of the State secure, if this point were once fairly gained. I would yield up the little privileges of my own town and of any others, that our children may enjoy civil, religious and political liberty, as perfectly, nay more perfectly than their fathers. With these views I am ready to support the report of the select committee—not in part, but as a whole—as a system—and if part is to be rejected I do not feel myself bound to sustain the rest. Indeed upon no other ground than a great diminution of the house of representatives can I ever consent to pay the members out of the public treasury. For this is now the only efficient check against an overwhelming representation. By the plan of the select committee the small towns are great gainers—a sacrifice is made by the large towns and by them only. They will bear a heavier portion of the pay of the representatives, and they will have a less proportionate representation than they now possess. And what do they gain in return? I may say nothing. All that is gained is public gain, a really deliberative legislature, and a representation in the senate, which is in fact a popular representation, emanating from and returning to the people, but so constructed that it operates as a useful check upon undue legislation and as a security to property.

I hope that this system will be adopted by a large majority, because it can scarcely otherwise receive the approbation of the people—I do not know that it is even desirable that the people should, nay, I might go further, and say that the people ought not to adopt any amendment which comes recommended by a bare majority of this Convention. If we are so little agreed among ourselves, as to what will be for the future public good, we had much better live under the present constitution, which has all our experience in its favor. Is any gentleman bold enough to hazard the assertion, that any new measure we may adopt can be more successful? I beg gentlemen to consider too what will be the effect if the amendments we now propose should be rejected by the people, having passed by a scanty majority. We shall then revert to the old constitution—and new parties, embittered by new feuds, or elated by victory, will be formed in the State and distinguished as constitutionalists and anti-constitutionalists; and thus new discontents and struggles for a new convention will agitate the Commonwealth. The revival of party animosities in any shape, is mostly to be deprecated. Who does not recollect with regret the violence with which party spirit in times past raged in this State, breaking asunder the ties of friendship and consanguinity? I was myself called upon to take an active part in the public scenes of those days. I do not regret the course which my judgment then led me to adopt; but I never can recollect, without the most profound melancholy, how often I have been compelled to meet, I will not say the evil but averted eyes, and the hostile opposition of men with whom, under other circumstances, I should have rejoiced to have met in the warmth of friendship. If new parties are to arise, new animosities will grow up, and stimulate new resentments. To the aged in this Convention, who now bow down under the weight of years, this can, of course, be of but little consequence—for they must soon pass into the tranquillity of the tomb;—to those of middle life it will not be of great importance, for they are far on their way to their final repose; they have little to hope of future eminence, and are fast approaching the period when the things of this world will fade away. But we have youth, who are just springing into life—we have children whom we love—and families, in whose welfare we feel the deepest interest. In the name of heaven, let us not leave to them the bitter inheritance of our contentions. Let us not transmit to them enmities which may sadden the whole of their lives. Let us not—like him of old, blind and smitten of his strength—in our anger seize upon the pillars of the constitution, that we and our enemies may perish in their downfall. I would rather approach the altar of the constitution and pay my devotions there, and if our liberties must be destroyed, I, for one, would be ready to perish there in defending them… .