Democracy, Liberty, and Property

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

CONTENTS

Foreword to the Liberty Fund Edition, with Suggested Further Reading, by G. Alan Tarr

General Introduction

Selected Bibliography

Editor’s Note

I The Massachusetts Convention of 1820–1821

Introduction

Chronology

1. The Test Oath

2. The Third Article

3. The “Poll Parish”

4. Tax Exemption

5. The Suffrage

6. The Basis of Representation

7. Joseph Story on Representation

8. Daniel Webster on Representation

9. “Address to the People”

TABLES

1.1 The Massachusetts Counties in Relation to Legislative Representation

1.2 The Division of the Vote by Counties on Two Questions in the Massachusetts Convention

10. Statement of the Votes for and against the Articles of Amendment, in the Several Counties

II The New York Convention of 1821

Introduction

Chronology

11. The Council of Revision and the Veto Power

12. The Term of the Governor

13. The Appointive Power

14. The Senate and the Suffrage

15. The Negro and the Suffrage

16. Blasphemy and Libel

17. Reform of the Judiciary

TABLES

2.1 The Vote by Districts on the Convention Bill, Suffrage, and Judicial Reform, and the Revised Constitution, in the New York Convention

2.2 The Vote of Radicals and Conservatives on Selected Questions in the New York Convention

III The Virginia Convention of 1829–1830s

Introduction

Chronology

Representation

18. Cooke on Democratic Representation

19. Upshur on Majorities and Minorities

20. Doddridge in Rebuttal

21. Leigh on Power and Property

22. Randolph on the Federal Issue

23. Marshall on Compromise

24. Summers on the Gordon Plan

25. Gordon on the Gordon Plan

The Suffrage

26. The Non-Freeholders’ Memorial

27. The Freehold Suffrage Defended

28. The Reformers’ Rebuttal

Structure and Change

29. The Executive

30. The County Courts

31. The Amendment Article

32. The Question of Ratification

TABLES

3.1 Population and Representation in Virginia by Districts, 1820–1830, and the Vote on Ratification of the Constitution of 1830

3.2 The Sectional Division on Selected Questions in the Virginia Convention

Index

Notes

FOREWORD TO THE LIBERTY FUND EDITION

This volume reproduces key debates from the important constitutional conventions held in Massachusetts, New York, and Virginia during the 1820s. The New York and Virginia conventions drafted constitutions to replace the original constitutions in those states, and voters by sizable majorities approved the new charters. The Massachusetts convention proposed a series of amendments to the state’s first (and only) constitution, several of which were approved by voters. The constitutional changes that the conventions introduced not only affected political development in the three states but also, given the states’ preeminence within their regions, influenced constitutional change in neighboring states.

In embarking on constitutional reform during this period, Massachusetts, New York, and Virginia were hardly unique. During the first half of the nineteenth century, Americans enthusiastically embraced the view, asserted in the Virginia Declaration of Rights, that “no free government, nor the blessings of liberty, can be preserved in any people, but by … a frequent recurrence to fundamental principles.”¹ Altogether thirty-eight new state constitutions were ratified from 1800 to the outbreak of the Civil War. Eighteen of these new constitutions were drafted by territories seeking statehood, but the expansion of the Union alone cannot explain the extraordinary burst of constitutional creativity. Eighteen of the new constitutions replaced existing state constitutions, and two replaced the colonial charters under which Connecticut and Rhode Island had continued to govern following independence. Indeed, of the twenty-four states in the Union by 1830, fifteen had revised their constitutions by 1860, two of them twice; and during a single decade (1844–1853) more than half the American states held constitutional conventions. New York and Virginia were among those states that rewrote their basic charters during that decade, adopting new constitutions in 1846 and 1851 respectively.

What prompted Massachusetts, New York, and Virginia (among others) to reassess their constitutional foundations during the early nineteenth century? The experience of government under the states’ existing constitutions played a vital role. By the 1820s the constitutions of all three states had been in operation for more than forty years, and time had revealed defects that demanded correction.² This was hardly surprising: the initial charters in those states had been drafted in the midst of a war for independence by people who lacked experience in constitutional design and self-government. With the passage of time, later generations felt themselves positioned to improve on the work of their predecessors. After all, as a New York delegate put it, “we find constitutions of the states more perfect, the later the period in which they have been made” (p. 142).

As this suggests, the example of other states was likewise important. State constitutional reformers drew both inspiration and guidance from the innovations pioneered in states that had recently written or revised their constitutions. In fact, the models that states emulated were found more frequently in the constitutions of other states than in the Federal Constitution. Delegates regularly referred to the experience of other states in the convention debates. For instance, in proposing a system of gubernatorial appointment with senatorial confirmation, the system found in the Federal Constitution, New York delegate Martin Van Buren noted that the state “constitutions which had been recently formed, and might therefore be in some degree regarded as the most recent expression of the sense of a portion of the American people, were in unison with the plan” (p. 161).

Population shifts within the states also fueled calls for constitutional reform. Many states made use of existing units of government, such as counties or towns, in apportioning representation in one or both houses of the state legislature. For example, the Massachusetts Constitution of 1780 guaranteed representation for each town, and the Virginia Constitution of 1776 provided for the election of two members of the House of Delegates from each county. The problem in Virginia, as in several other states, was that county boundaries had been drawn prior to independence or immediately after it was declared, when state populations were still concentrated along the Atlantic seaboard. When population shifted as a result of intrastate migration, political power did not, and this prompted demands for a more equitable system of representation.

In Virginia, the slaveholding eastern counties, which were dominated by large landowners, exercised disproportionate influence, continuing to control the government even after they no longer included a majority of the population. Dissatisfaction with this situation was the principal factor that led to the 1829–1830 convention. Although the topic of representation dominated debate in the convention and called forth considerable eloquence from both sides, it is doubtful that the debate changed many votes. The eastern delegates feared that western dominance of the government would mean heavy taxation on slaves. As one delegate put it, “Our interests are not identical, and the difference between us arises from property alone. We therefore contend that property ought to be considered, in fixing the basis of representation” (p. 284). Whatever the validity of that view, the eastern delegates offered only limited concessions, and it was not until 1851, when Virginia adopted its third constitution, that representation in the lower house was closely tied to population.

Significant changes had also occurred in political thought and political practice since the founding era, and reformers insisted that the constitutions in their states should be revised to reflect those shifts. In doing so, they were endorsing a distinctive understanding of constitutionalism. In The Federalist James Madison cautioned that constitutional change should be infrequent lest popular reverence for the fundamental law be undermined. Madison’s advice has been heeded at the national level: the Federal Constitution is more than two centuries old, and it has been amended only twenty-seven times. But most states have rejected Madison’s concern. Instead they have followed the advice of Thomas Jefferson, who argued that “laws and institutions must go hand in hand with the progress of the human mind” and that “as manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”³ In endorsing Jefferson’s recommendation of more frequent constitutional updating, the states have opted for a more matter-of-fact attitude toward their constitutions, treating them as instruments for advancing political goals and susceptible to modification and replacement as circumstances require, rather than as venerated documents.

A final, perhaps less obvious factor encouraging state constitutional innovation during the early nineteenth century was the division of power between nation and state under the United States Constitution. By assigning certain policy concerns to the states, the Constitution ensured that when conflicts over these matters arose, they would be resolved by state law and often by state constitutional prescription. A prime example is the relations between church and state. The First Amendment prohibits Congress from “mak[ing] laws respecting an establishment of religion,” a provision that not only forbade the establishment of a national church but also, in deference to federal diversity, prevented Congress from interfering with the religious establishments that existed in the states. As criticism of these establishments mounted in the decades following independence, state constitutional conventions became the venue for discussion about their reform or elimination.

Virginia had already eliminated all vestiges of religious establishment in the state with the adoption of the famous “Bill Establishing Religious Freedom,” so the issue of church and state did not arise at its 1829–1830 convention. New York too had no formal establishment, but delegates to the 1821 convention were troubled by the test oath for public office and by Chancellor Kent’s opinion in People v. Ruggles (1811), in which he declared that Christianity was “part and parcel of the laws of the land.” To eliminate these remnants of establishment, the New York delegates inserted language in the Bill of Rights that eliminated the test oath, repudiated Ruggles, and reaffirmed the state’s commitment to religious liberty.

In Massachusetts the issue of church and state proved particularly contentious. The 1780 constitution had established a general assessment for religion, obliging towns and villages to “make suitable provision at their own expense” for “the support and maintenance of public Protestant teachers of piety, religion, and morality.”⁴ The debates in the Massachusetts Convention of 1820–1821 reveal a broad consensus in favor of, in the words of one delegate, “the right of every individual to worship God in a manner agreeable to the dictates of his own conscience” (p. 34). Most delegates also agreed that republican government depended on the moral character of the citizenry and that religion played a vital role in instilling virtue. But they disagreed about “the propriety of mixing civil and religious institutions” (p. 38) and about whether eliminating tax support for churches would undermine religion and jeopardize republican government. Ultimately the Massachusetts delegates sought to retain a modified establishment that extended benefits to non-Protestant teachers, but voters refused to ratify the compromise they crafted, and in 1833 by amendment they altogether eliminated public support for religion.

Another key issue that the Federal Constitution left to the states was voting qualifications. Article I, section 2, of the Constitution authorizes any person who is qualified to vote for the lower house of a state’s legislature to vote for members of the House of Representatives. In so doing, it implicitly recognizes the authority of the states to establish qualifications for those voting in state elections. Initially, the original thirteen states restricted the franchise to either freeholders or taxpayers. Some states admitted to the Union from 1800 to 1820, such as Ohio, adopted similar restrictions on suffrage while others, such as Alabama, instituted white manhood suffrage. From the 1820s onward, property-holding and taxpaying requirements for voting came under sustained attack in state constitutional conventions.

Those defending property qualifications for voting portrayed the franchise as a privilege rather than as a right and insisted that, in the words of a Massachusetts delegate, “it was a distinction to be sought for; it was the reward of good conduct. It encouraged industry, economy and prudence; it elevated the standard of all our civil institutions, and gave dignity and importance to those who chose, and those who were chosen” (p. 57). Other delegates argued that extension of the franchise would “jeopardize the rights of property, and the principles of liberty,” enabling the many poor to confiscate the property of the wealthy few (p. 175). Proponents of manhood suffrage responded that limiting the franchise was inconsistent with the natural equality of all men recognized in the Declaration of Independence. If human beings were equal by nature, then they should have an equal voice in governing. They insisted that “possession of land [was no] evidence of peculiar merit” and that assertions that the vote might be misused did not justify qualifications that were “invidious and anti-republican” (pp. 339, 352).

After fierce debate, the Massachusetts Convention of 1820–1821 and the Virginia Convention of 1829–1830 boThexpanded the franchise, with Massachusetts permitting taxpayers to vote and Virginia extending the vote to heads of families and certain types of leaseholders. But neither state embraced manhood suffrage. In contrast, the New York Convention of 1821 jettisoned its freehold requirement. By giving the vote to white males who paid taxes or otherwise made a contribution to the community through service in the militia or as firemen or through work on the roads, it in practice established white manhood suffrage, expanding the state’s electorate by 160,000 voters.⁵ At the same time, however, New York introduced an onerous freehold requirement for African-Americans that effectively disenfranchised all but a few black voters.

A final area left to the states involved the structure of state governments. The Federal Constitution requires that the national government guarantee to each state a “republican form of government,” but it otherwise permits the states broad leeway in designing their institutions, provided they are republican in character. The states have taken advantage of this opportunity to experiment. So, for example, Pennsylvania and Vermont initially established unicameral legislatures, New York and New Jersey lodged ultimate appellate authority outside the judiciary, and several states permitted removal of judges by address, that is, on the recommendation of the legislature even in the absence of an impeachable offense.

In the Massachusetts convention, the key structural issue was the system of representation. Under its 1780 constitution, Massachusetts apportioned representation in the Senate on the amount of taxes that residents paid, and it guaranteed representation to each town in the House, with proportionately more representatives for more populous towns and cities. Those who defended the system of representation in the Senate noted that “all government is a modification of general principles and general truths, with a view to practical utility” (p. 92). They argued that the existing system provided a salutary check on “intemperate legislation” and insisted that “property should have its due weight and consideration in political arrangements” (pp. 84, 91). Because “no practical inconvenience has been felt” under this system, it was unwise “to exchange the results of our own experience for any theory” (p. 78). In contrast, those who favored basing representation in the Senate on population contended that “our government is one of the people, not a government of property” (p. 64). Invoking the revolutionary slogan of no taxation without representation, they argued that it did not justify unequal representation based on the amount of taxes paid. Adequate checks and balances could be established, and property rights protected, without directly representing wealth. Ultimately, the convention declined to make any change in the apportionment of the Senate.

For the New York Convention of 1821, debate centered on two distinctive institutions, the Council of Revision and the Council of Appointments, that were created by the state’s 1777 constitution. That constitution lodged the veto power over laws that were “hastily and inadvisedly passed” in the Council of Revision, which consisted of the governor, the chancellor, and judges of the supreme court.⁶ It is not altogether clear whether this institution, apparently modeled on the king of England’s Privy Council, was designed to strengthen the executive, which otherwise might have lacked the fortitude to oppose the legislative will, or to weaken it by requiring the concurrence of a council to veto bills. Whatever the case, the council played an active role in legislation, vetoing 169 of the 6,500 bills passed by the legislature (2.6 percent), although the legislature overrode almost one-third of its vetoes.

Although there was little support in the convention for the retention of the Council of Revision, the delegates divided over what should be done with the veto power. Some radical delegates favored a gubernatorial veto that could be overridden by a simple majority in the legislature, arguing that requiring an extraordinary majority “tends to perpetuate the aristocracy that exists in the constitution” and interferes with popular government (p. 144). However, most delegates concluded that “the experience of the community shews, that no essential injury” would result from requiring a two-thirds majority to override gubernatorial vetoes, because “a wise and salutary law” would generate broad support (p. 148). One indirect effect of the abolition of the Council of Revision, unnoted by the delegates, was a broader exercise of judicial review by the courts. Judges who had been reluctant to invalidate laws that had survived scrutiny by the Council of Revision became much more willing to strike down legislation after its abolition.⁷

New York’s 1777 constitution lodged the appointment power in a Council of Appointment, composed of the governor and four senators elected annually by the legislature. Although the expectation was that the governor would appoint officials with the advice and consent of the council, the constitution did not expressly state that, and the senators on the council claimed a concurrent power of nomination. When New York’s 1801 convention confirmed this concurrent power of nomination, it opened the door to a system of blatant political patronage that ultimately undermined support for the council. The 1821 convention voted unanimously to abolish the Council of Appointment, but this raised the question of where the appointment power should be lodged. The eventual answer was a political compromise, under which various local officials—justices, sheriffs, county clerks, and coroners—would be nominated and selected at the county level; all other judges would be appointed by the governor with the advice and consent of the Senate; and all other officials—such as the state treasurer and attorney general—would be appointed by the legislature.

Perusal of the debates on these and other matters reveals a considerable political sophistication among the delegates. They readily appeal to fundamental principles to bolster their arguments, invoking the Declaration of Independence’s natural equality of human beings and the natural rights possessed by all human beings as a consequence of that equality. Writers such as Locke and Grotius are regularly cited, and delegates often draw on English and Roman, as well as American, history to support their arguments. Experience likewise plays a crucial role in the convention deliberations, with delegates assessing not only the effects of existing practices and institutions in their own states but also the effects of alternative constitutional arrangements in sister states.

The importance of the task of constitutional reform attracted the most talented political figures in the states to the conventions. Thus the Virginia convention included two former presidents (James Madison and James Monroe), the chief justice of the Supreme Court (John Marshall), future justice Philip Barbour, and two United States senators, including John Randolph, who attended sessions with crepe on his hat and sleeves in mourning for the old constitution.⁸ The Massachusetts convention boasted former president John Adams, Supreme Court justice Joseph Story, and future senator Daniel Webster, among others, while the New York convention included future president Martin Van Buren, Chancellor James Kent, and Chief Justice Ambrose Spencer.

Yet the convention debates also highlight the contributions of lesser known figures. Constitutional conventions are a peculiarly American invention, designed to provide ordinary citizens an opportunity to chart their political futures. The seriousness and good sense exhibited by virtually all the delegates confirms how important political responsibilities can elevate those entrusted with them. And reading these debates can inform and instruct later generations that may likewise be called upon to set the direction for the future course of their political societies.

Indeed, this collection of convention debates is just as timely now as when it was first published in 1966. In the intervening decades scholars such as Gordon Wood, Bernard Bailyn, and Donald Lutz have revolutionized the study of the American founding, highlighting the political alternatives available to the founding generation and the deliberation that went into their choices among those alternatives.⁹ This volume complements that research, showing that as the nation grew and developed, nineteenth-century Americans had to confront anew the perennial question of how to guarantee liberty and promote self-government. Also, since the initial publication of these debates many countries throughout the world have thrown off dictatorships. This volume provides a model of self-government, of popular participation in making fundamental political choices, that can serve as an inspiration to those struggling to secure liberty and create viable popular governments. Finally, for students this volume illustrates how political liberty can encourage and elevate public discourse. By reading and reflecting on these debates, they can better understand the enduring issues relating to liberty and popular rule that they will confront as citizens.

G. Alan Tarr

Suggested Further Reading

Recent decades have witnessed a burgeoning interest in American state constitutions and American political development. Listed below are sources pertinent to constitutional development and constitutional debates in Massachusetts, New York, and Virginia, and in the American states more generally, from the beginning of the nineteenth century to the outbreak of the Civil War.

Bruce, Dickson D. The Rhetoric of Conservatism: The Virginia Convention of 1829–30 and the Conservative Tradition in the South. San Marino, Calif.: Huntington Library, 1982.

Cogan, Jacob Katz. “The Look Within: Property, Capacity, and suffrage in Nineteenth-Century America.” Yale Law Journal 107 (November 1997): 473–98.

Dinan, John J. The American State Constitutional Tradition. Lawrence: University Press of Kansas, 2006.

———. The Virginia State Constitution: A Reference Guide. Westport, Conn.: Greenwood Press, 2006.

Elazar, Daniel J. “The Principles and Traditions Underlying American State Constitutions.” Publius 12 (Winter 1982): 11–25.

Fehrenbacher, Don E. Constitutions and Constitutionalism in the Slaveholding South. Baton Rouge: Louisiana State University Press, 1989.

Finkelman, Paul, and Stephen E. Gottlieb, eds. Toward a Usable Past: Liberty under State Constitutions. Athens: University of Georgia Press, 1991.

Freyer, Tony A. Producers versus Capitalists: Constitutional Conflict in Antebellum America. Charlottesville: University Press of Virginia, 1994.

Friedman, Lawrence M. “Fallacies of American Constitutionalism.” Rutgers Law Journal 35 (Summer 2004): 1327–69.

———. “State Constitutions in Historical Perspective.” Annals of the American Academy of Political and Social Science 496 (March 1988): 33–42.

Fritz, Christian G. “Alternative Visions of American Constitutionalism: Popular Sovereignty and the Early American Constitutional Debate.” Hastings Constitutional Law Quarterly 24 (Winter 1997): 287–357.

Galie, Peter J. The New York State Constitution: A Reference Guide. Westport, Conn.: Greenwood Press, 1991.

———. Ordered Liberty: A Constitutional History of New York. New York: Fordham University Press, 1996.

Hall, Kermit L., and James W. Ely Jr., eds. An Uncertain Tradition: Constitutionalism and the History of the South. Athens: University of Georgia Press, 1989.

Hall, Kermit L., Harold M. Hyman, and Leon V. Sigal, eds. The Constitutional Convention as an Amending Device. Washington, D.C.: American Historical Association and American Political Science Association, 1981.

Handlin, Oscar, and Mary Flug Handlin. Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780. Cambridge: Belknap Press of Harvard University Press, 1966.

Hoar, Roger Sherman. Constitutional Conventions: Their Nature, Powers, and Limitations. Boston: Little, Brown, 1919.

Hulsebosch, Daniel Joseph. Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830. Chapel Hill: University of North Carolina Press, 2005.

Lutz, Donald S. Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions. Baton Rouge: Louisiana State University Press, 1980.

McHugh, James T. Ex Uno Plura: State Constitutions and Their Political Cultures. Albany: State University of New York Press, 2003.

Novak, William J. The People’s Welfare: Law and Regulation in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 1996.

Scalia, Laura J. America’s Jeffersonian Experiment: Remaking State Constitutions, 1820–1850. DeKalb: Northern Illinois University Press, 1999.

Steinfeld, Robert J. “Property and Suffrage in the Early American Republic.” Stanford Law Review 41 (January 1989): 335–76.

Sturm, Albert L. “The Development of American State Constitutions.” Publius 12 (Winter 1982): 57–98.

Sutton, Robert P. Revolution to Secession: Constitution Making in the Old Dominion. Charlottesville: University Press of Virginia, 1989.

Tarr, G. Alan. Constitutional Politics in the States: Contemporary Controversies and Historical Patterns. Westport, Conn.: Greenwood Press, 1996.

———, Understanding State Constitutions. Princeton: Princeton University Press, 1998.

Williams, Robert F. State Constitutional Law: Cases and Materials. 4Thed. Charlottesville, Va.: Lexis Law Publishing, 2006.

GENERAL INTRODUCTION

The constitutional convention has been called “America’s basic institution.” It developed in the actual process of state-making during the American Revolution. When the people of the thirteen colonies declared their independence, they had not only to prove their claim on the battlefield but also to reestablish the foundations of political authority. The fundamental principle was stated in the Declaration of Independence: “That governments are instituted among men, deriving their just powers from the consent of the governed.” But how could the people, thrown into the figurative state of nature by the dissolution of old bonds and allegiance, reduce the principle to practice? History furnished no models; and political philosophers, though they had speculated on the sovereignty of the people, had not descended to the lowly realm of political means and institutional contrivance to implement their theory.

The Revolutionary Americans discovered the answer to the riddle in the constitutional convention. A product not of abstract theory but of developing practice, of essentially ad hoc experimentation under the trying conditions of the Revolutionary War, the first state constitutions were at best imperfect realizations of the principle of popular consent in the making of government. In 1780, however, the Massachusetts constitution produced a model from which the theory of constituent sovereignty could be formulated. It contained three main elements. First, the people, through their elected delegates, “represent” their sovereignty in a convention called to constitute a government. Second, the constitution thus framed is ratified by the people and given effect by their majority. Third, the people retain the right to revise, and presumably to abolish, the constitution by the ongoing exercise of their sovereignty.

It was scarcely to be expected that the first state constitutions would endure beyond the age that produced them. The age was a time of peril; American society was in its infancy; self-government was a daring experiment; and democracy had not been born. “In truth,” Thomas Jefferson later observed,

the abuses of monarchy had so much filled all the space of political contemplation, that we imagined everything republican which was not monarchy. We had not yet penetrated to the mother principle, that “governments are republican only in proportion as they embody the will of their people, and execute it.”

The movement for the reform of the original state constitutions got underway after 1800, but the principal impetus developed in the years following the Peace of Ghent. Problems of war and foreign relations receded from view, and the people turned inward to catch up with nearly a half-century’s growth and to fix the direction of further advance. The mere process of growth made manifest the errors and defects of the Revolutionary state constitutions. Where they obstructed progress or blocked the aspirations of newly ascendant groups in the community, there were demands for constitutional reform; and backed by the force of Revolutionary ideas of freedom and equality, these demands became irrepressible. The expanding American West opened new political vistas. Six new states—Indiana, Illinois, Mississippi, Alabama, Missouri, and Maine—entered the Union between 1816 and 1821. Their constitutions, while in most respects imitative of Eastern models, registered important democratic gains, particularly in the provision for universal white manhood suffrage. Of the original states, only Maryland had taken this step.

All the states felt the pressure for democratization, and slowly, haltingly, responded to it. Democracy was the political talisman of the new age—the age that had its symbol in Andrew Jackson, elevated to the Presidency in 1829. “There was a kind of democratic fanaticism in the air,” wrote a prominent historian of several decades ago. “A kind of metaphysical entity called the People (spelled with a capital) was set up for men to worship. Its voice was the voice of God; and, like the king, it could do no wrong.” But many Americans challenged the wisdom or the legitimacy of this voice. From conviction or habit or interest—or all together—they were attached to established institutions and profoundly distrustful of this brazen pretender King Numbers. The confrontation between conservatives and democratic reformers—the old order and the new—occurred in many areas of public life; but nowhere more meaningfully than in the state constitutional conventions of the time. Conventions were the visible embodiments of the people’s sovereignty. They were unsurpassed arenas of ideological encounter and potent instruments of reform.

The three state conventions that are the subject of this volume—Massachusetts in 1820–1821, New York in 1821, and Virginia in 1829–1830—were the most interesting, in some respects the most important, of the age. No others are likely to prove so instructive to the student of American history. The three states were leaders of their respective sections—New England, Middle Atlantic, and Southern. Each stood for something greater than itself; each convention registered the tone, the problems, the conflicts of a traditional center of American society and thought; and each was bound to have an influence in neighboring states. The three states had a history in common, of course; they faced some of the same challenges of reform; and the main lines of controversy in these conventions converged on two sets of political assumptions, one basically conservative, the other basically democratic. But beyond this it is difficult to generalize. Each state, each convention, was a phenomenon unto itself and must be understood in terms of its own peculiar history. In Massachusetts the issue of religious liberty was of paramount importance. In New York the most troublesome problems were those of institutional structure, especially in the executive and judicial branches of government. And in Virginia the underlying issue was equality of representation between the two great divisions of the state.

But whatever the particular issues, the fundamental problem of each convention was to work out some sort of balance between three primary values—democracy, liberty, and property. Thus the theme of this volume. Democracy meant several things: first, the right of the people to establish or reform the constitution; second, the equality of rights—suffrage, representation, access to public office—under the constitution; and third, the continuing responsibility of the government to the majority opinion of the community. Reformers advocated the expansion of democracy, some to moderate, others to radical, lengths, while conservatives sought to retard and curb it by traditional or new-model restraints on popular power. Both were advocates of liberty. As associated with democracy, however, the concept premised equality of rights and majority rule. It consisted not only in individual free exercise of “natural rights,” reinforced by constitutional guarantees, but also in the power of the people to govern with as little hindrance as possible; and reformers generally relied on the good sense of the people to keep individual freedom and popular sovereignty compatible. Conservatives feared the consequences of this marriage. The egalitarian and majoritarian conception of liberty threatened, in their opinion, the paramount rights, privileges, and interests upon which the order and well-being of the community depended. In order to secure the greatest aggregate liberty, they believed the state must deny the claims of some citizens, throw a mantle of protection around certain minorities, and maintain a discriminatory balance between the competing interests of the community. Property, according to the conservatives, was the principal value requiring protection from a democratic majority. Property being of different kinds and unequally distributed in society, these disparities should be reflected in the constitution of political power. Property and power must go together, conservatives said; otherwise, property will purchase power or power will ravage property. Reformers were equally solicitous of property—it was a necessary ingredient of “life, liberty and the pursuit of happiness”—but they felt it had nothing to fear from democracy in the United States, where property was, in fact, widely distributed and every man had an interest in its security. The idea of a fundamental antagonism between property and numbers belonged to the Old World, they said; it had no correspondence to American realities. Here a uniformly democratic government, one that reinforced the public will, was in perfect accord with the principles of liberty and property and made unnecessary those contrivances of balance and restraint that were the product of another age and continent.

Because these convention debates pitched on perennial problems of American government, they have an enduring import and a high degree of theoretical interest. But they are political, not academic, debates; one must not expect to find in them the coherence and consistency of cloistered philosophy. And although they speak, often with great cogency, to our time, they cannot be detached from their place in the stream of history, which was at the point of deepest disturbance between the faintly aristocratic republican order of the nation’s classic age and the new democracy of the nineteenth century.

Merrill D. Peterson University of Virginia July 1964

SELECTED BIBLIOGRAPHY

General

De Grazia, Alfred. Public and Republic: Political Representation in America. New York: Knopf, 1951.

Douglass, Elisha P. Rebels and Democrats: The Struggle for Equal Rights and Majority Rule During the American Revolution. Chapel Hill: University of North Carolina Press, 1955.

Hartz, Louis. The Liberal Tradition in America. New York: Harcourt, Brace & World, 1955. Also, New York: Harvest Books (Harcourt, Brace & World), paperback.

Merriam, Charles E. A History of American Political Theories. New York: Macmillan, 1920.

Mims, Edwin, Jr. The Majority of the People. New York: Modern Age, 1941.

Swisher, Carl Brent. American Constitutional Development. Boston: Houghton Mifflin, 1954.

Tocqueville, de, Alexis. Democracy in America. Trans. Phillips Bradley. 2 vols. New York: Knopf, 1944. Also, New York: Schocken Books, paperback.

Turner, Frederick Jackson. Rise of the New West: 1819–1829. Gloucester: Peter Smith, 1959. Also, New York: Collier Books, paperback.

Williamson, Chilton. American Suffrage from Property to Democracy: 1760–1860. Princeton: Princeton University Press, 1960.

Wright, Benjamin F., Jr. American Interpretations of Natural Law: A Study in the History of Political Thought. New York: Russell and Russell, 1962.

Massachusetts

Birdsall, Richard D. Berkshire County: A Cultural History. New Haven: Yale University Press, 1959.

Greene, Evarts B. Religion and the State: The Making and Testing of an American Tradition. New York: New York University Press, 1941. Also, Ithaca: Cornell Paperbacks.

Handlin, Oscar and Mary F. Commonwealth: A Study of the Role of Government in the American Economy, Massachusetts, 1774–1861. Cambridge: Harvard University Press, 1947.

Journal of Debates and Proceedings in the Convention of Delegates, Chosen to Revise the Constitution of Massachusetts. Boston: Boston Daily Advertiser, 1853.

Meyer, Jacob C. Church and State in Massachusetts from 1740 to 1833. Cleveland: Western Reserve University Press, 1930.

Robinson, William A. Jeffersonian Democracy in New England. New Haven: Yale University Press, 1916.

Taylor, Robert J. Massachusetts, Colony to Commonwealth: Documents on the Formation of Its Constitution, 1775–1780. Chapel Hill: University of North Carolina Press, 1961. Also, by same publisher, in paperback.

New York

Alexander, DeAlva Stanwood. A Political History of the State of New York. Vol. I. New York: Holt, 1906.

Fox, Dixon Ryan. The Decline of Aristocracy in the Politics of New York. New York, 1919.

Hammond, Jabez D. The History of Political Parties in the State of New York… . 2 vols. Fourth Edition. Syracuse: Hall, Mills, 1852.

Horton, John Theodore. James Kent: A Study in Conservatism, 1763–1847. New York: Appleton-Century, 1939.

Lincoln, Charles Z. The Constitutional History of New York. Vol. I. Rochester: Lawyers Publishing, 1906.

Litwack, Leon. North of Slavery: The Negro in the Free States, 1790–1860. Chicago: University of Chicago Press, 1960.

Reports of the Proceedings and Debates of the Convention of 1821, Assembled for the Purpose of Amending the Constitution of the State of New York. Albany: E. & E. Hosford, 1821.

Street, Alfred B. The Council of Revision of the State of New York. Albany, 1859.

Virginia

Ambler, Charles H. Sectionalism in Virginia from 1776 to 1860. Chicago: University of Chicago Press, 1910.

Chandler, J. A. C. History of suffrage in Virginia. Baltimore: Johns Hopkins University Press, 1901.

———. Representation in Virginia. Baltimore: Johns Hopkins University Press, 1896.

Green, Fletcher M. Constitutional Development in the South Atlantic States, 1776–1860. Chapel Hill: University of North Carolina Press, 1930.

Grigsby, Hugh Blair. The Virginia Convention of 1829–30. Richmond: Virginia Historical Society, 1855.

Journal, Acts and Proceedings, of a General Convention of the Commonwealth of Virginia, Assembled at Richmond… . Richmond: T. Ritchie, 1829.

Peterson, Merrill D. The Jefferson Image in the American Mind. New York: Oxford University Press, 1960. Also, New York: Galaxy Books (Oxford University Press), paperback.

Pleasants, Hugh B. “Sketches of the Virginia Convention of 1829–30,” The Southern Literary Messenger (Richmond), XVII (1851), 147–54, 297–304.

Pole, John R. “Representation and suffrage in Virginia,” Journal of Southern History (Lexington, Kentucky), XXIV (1958), 16–50.

Proceedings and Debates of the Virginia State Convention of 1829–30. Richmond: Ritchie & Cook, 1830.

Sydnor, Charles. The Development of Southern Sectionalism, 1819–1843. Baton Rouge: Louisiana State University Press, 1853.

EDITOR’S NOTE

The published texts of the debates of the three conventions are of uneven quality. That of the Virginia convention is unquestionably the fullest and the best. Thomas Ritchie, editor of the Richmond Enquirer, employed Arthur Stansbury to report the debates. Because Stansbury was both skilled in shorthand and experienced in legislative proceedings, as a recorder of Congressional debates, he was able to offer a superb stenographic transcription of everything said and done in the convention. The Massachusetts volume, the least satisfactory of the three, was composed from the day-to-day reports published in the Boston Daily Advertiser. Reprinted in 1853, this edition is used here. Two newspaper editors compiled the New York volume with the object of preserving in more regular and durable form than the fugitive columns of public journals a full and accurate record of the convention proceedings. They were assisted by a stenographer.

The selections from the texts have been reprinted literally. In the effort to provide a rounded view of each convention within the scope of this volume, it has been necessary to abridge most of the selections from the debates. Where one paragraph or more has been deleted from a speech, ellipses appear at both the beginning and end of the part deleted. Editorial insertions in the text are bracketed. The editor’s footnotes are clearly designated by the use of “[Ed.].”

The editor has provided a general introduction and historical introductions to each of the conventions, chronologies, headnotes to speeches or issues, a number of analytical tables, and a selective bibliography.

INTRODUCTION

The Massachusetts constitution of 1780, the last of the Revolutionary constitutions, was the first to embody the full-blown theory of constituent sovereignty. It had been framed in special convention and ratified by the people in town meetings. In this and in its provisions for an elective chief magistrate, a broadly representative legislature, and an independent judiciary, it avoided some of the paramount errors of the early constitutions. John Adams was its principal architect; and as the consummate expression of his political science, the constitution, together with its declaration of rights, represented a masterful adaptation of Massachusetts political custom and habit to Revolutionary theory, as well as an ingenious blending of “aristocratic” and “monarchical” elements into the republican fabric according to the canons of “balanced” government. In this character particularly, the constitution was the pride of the conservative men who led the Federalist Party and guided the affairs of the commonwealth through most of its history.

But the very features of the constitution they most admired were, of course, viewed as anachronisms by men who espoused a government uniformly free and republican. The latter had voiced their opposition to key provisions of the constitution in the course of its ratification. Although they were never entirely reconciled to the frame of government, it tended to vindicate itself in its working; and when the opportunity came for revision in 1795, as provided by the constitution, they let it pass. Perhaps they realized that in the political complexion of the state at that time no satisfactory reform was possible. The minority of dissenters identified their cause with the rising Republican Party. It was sometimes in power after 1800, but it lacked the strength to reform the constitution. Caught up in the heated dissension between the parties, the issue of reform could not be resolved. Only when political tempers cooled in “the era of good feelings,” shriveling the Federalist ranks and making Republicanism respectable, even in Massachusetts, was a constitutional convention decided upon.

The separation of the District of Maine and its admission to statehood furnished the suitable occasion. The change in Maine’s status called for revision of the system of representation, a subject entangled in other difficulties as well, and this problem, together with a mounting crisis in the religious life of the commonwealth, caused the legislature to place the question of a convention before the electorate in August 1820. The issue was little discussed publicly. Massachusetts then had a population of more than half a million, and the overwhelming majority of adult males could presumably qualify for the franchise. But, in practice, voting was the exception rather than the rule; on the convention issue, only 18,349 citizens cast their votes—a smaller return than usual in state elections. They favored the convention nearly 2 to 1. In October the towns elected delegates, 490 in all, in accordance with the scale of representation for the lower house of the legislature.

Massachusetts was at that time divided into fourteen counties. Suffolk (46 delegates), the wealthiest of the counties, was virtually coterminous with the burgeoning city of Boston. Essex (68 delegates) stood to the north, once a Federalist stronghold—the home ground of the notorious Essex Junto¹—and still dominated by the merchants and shipmasters of Salem, Newburyport, Marblehead, and Gloucester. Just west of Boston and bordering Essex to the north lay Middlesex (60 delegates), primarily a farming area though, as in Essex, several of its peaceful towns were absorbing the first shocks of the industrial revolution. South of Boston and circling Cape Cod to Provincetown lay the counties of Norfolk (34 delegates), Plymouth (35), Bristol (40), and Barnstable (17), an old settled area, equally varied in its economic and its religious character, much of it poor and cut off from the main stream of the state’s development. The off shore islands Nantucket (6 delegates), and Martha’s Vineyard, called Dukes (2), had never recovered from the blow struck by the Revolution to the fishing and whaling industries. The county lines of Worcester (70 delegates) bounded the large east-central portion of the state, agricultural, of course, and, on the whole, conservative in politics. In the rich Connecticut River valley lay the counties of Hampshire (25 delegates), Hampden (29), and Franklin (26), dominated by the towns of Northampton and Springfield. The valley had a reputation for orthodoxy in politics as in religion, despite Shays’s Rebellion; but it also prided itself on its independence, and the “river gods” had long been at odds with Boston, State Street, and Harvard College. The county of Berkshire (32 delegates) embraced the entire western hill country. Here, if anywhere, was the center of radical discontent in Massachusetts. Yet it is risky, as the proceedings of the convention prove, to pin a political label on any of the counties or the larger geographical divisions of the state. In all of them were friends of liberal reform. They had no common program and formed no solid bloc in the convention. It was, nevertheless, true that most of the reform leadership and following came from the outlying areas, while the conservatives centered in Boston and the Essex-Middlesex-Norfolk perimeter.

On November 15 the delegates crowded the representatives’ chamber of the State House in Boston, and the convention was called to order. The new generation paid its respects to the old by choosing the venerable John Adams president. He declined. (“Old time has shaken me by the hand, and paralyzed it,” he remarked in a letter to Thomas Jefferson.) Whereupon the convention chose Isaac Parker, chief justice of the Massachusetts supreme court, and on the following day ceremoniously conducted Adams to a permanent seat at the right hand of the president. The convention speedily organized itself. The constitution was divided into ten parts, each part assigned to a select committee to consider changes and report to the convention, these reports to be individually discussed and passed upon in committee of the whole, and the convention finally deciding upon the changes proposed. Some delegates questioned this procedure. Once the constitution had been dissected by ten separate committees, who could put it together again? “It is like sending mechanics into the woods in different directions to hew down trees and fit them for a building.”² They wished, rather, to attack the constitution as a unit. In so numerous a body such a plan might have been disastrous. The chosen line of procedure proved its efficiency; New York adopted it the next year. Expertly controlled by adept parliamentarians, most of them of conservative stripe, the convention was a model of deliberative conduct by a body of nearly five hundred men.

Counting all the men who wished fundamental changes in the constitution, the reform ranks undoubtedly numbered a majority of the convention. In James T. Austin, Henry Dearborn, Levi Lincoln, Henry Halsey Childs—Republicans to the man and sons of the first Jeffersonians in the Bay State—they had strong leaders. But the reformers were divided among themselves, disorganized, outmaneuvered, and outclassed by a small but powerful cadre of conservatives. Daniel Webster, just then coming into prominence as a statesman, and Supreme Court Justice Joseph Story were their brilliant champions, ably supported by such Federalist stalwarts as Leverett Saltonstall, Josiah Quincy, and Samuel Hoar. Revering the historic frame of government and united in their determination to save it from the assaults of “radicalism,” their strategy was a defensive one—their tactics conciliatory on minor points, obstinate on major principles. It succeeded magnificently. Story summarized the result with a measure of self-congratulation:

I firmly believe that those who ultimately prevailed in the Convention, were always in a minority in number, but with a vast preponderance of talent and virtue and principle. It was no small thing to prevent sad mischiefs to the Constitution. The struggle on our part was not for victory, but for the preservation of our best institutions.

What were these “best institutions” saved from destruction? First, the pecuniary qualification for the franchise; second, town representation in the house; third, the independence of the judiciary; fourth, the propertied basis of the senate; fifth, government support of religious worship. Four and five were the most seriously threatened. And the long-festering issue of state-supported religion gave more difficulty than any other.

The ruling order had not forgotten that Massachusetts began as a Holy Commonwealth. The faith of the Puritan founders had degenerated, of course, dissenting sects had sprung up and flourished, and Revolutionary ideas had upset the historic commitment to an established church; but in the face of these difficulties the state had endeavored to maintain its religious character and to enforce a corporate piety upon the entire community. Freedom of religious conscience was not denied in Massachusetts; indeed, it was expressly guaranteed by the second article of the declaration of rights. But it was rendered incomplete, and in the eyes of many dissenters nugatory, by other provisions of the constitution of 1780. Elected officials, senators, and representatives must declare their belief in the Christian religion. Ministers of Congregational churches in and around Cambridge held appointment as overseers of Harvard University, an institution sanctioned and supported by the state, yet dominated by this old, established clergy. Although the constitution did not formally establish the Congregational as the state church, it was the principal beneficiary of an ingenious compromise worked out by the framers to meet two sharply conflicting demands—religious freedom for the individual and public support of Christian worship for the peace and good order of the community. Embodied in the third article of the declaration of rights, the compromise required the several towns and parishes to make provision for public worship and instruction by Protestant ministers, provided, however, that “all monies paid by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination… .” What this amounted to was the establishment of Protestant Christianity, though not without preference as to sect, because it operated within the historic framework of the Congregational system. Parish and town boundaries were usually coterminous, thus enabling church and town to act as one. The statute enacted in 1786 to implement the third article by authorizing the parishes, as bodies corporate, to assess polls and property for the support of religion confirmed, in effect, the locally established Congregational religion. Dissenters, to be sure, could file certificates with the local authorities declaring that they worshipped outside the fold and requesting that their tax money be transferred to their own ministers. But not only was this an awkward business; it was also an avowal of religious inequality, an admission of the right of government to interfere in affairs of religion, and an affront to the private conscience.

The third article, hotly contested from the start, threw the state into religious turmoil at intervals for forty years. The Baptists spearheaded the opposition, but increasingly other dissenting sects, which multiplied and grew until they represented a formidable challenge to the standing Congregational order, lent their support. They called for a dissolution of the state’s connections with religion and the introduction of a “voluntary system” of religious life. Every other state of the Union came to this solution before 1820. The crusading Baptist preacher Elder John Leland, who returned to his native state after laboring many years in Virginia, championed the Jeffersonian way for Massachusetts. Religion in Virginia and most other states was entirely free of official sanction or support, Leland said, “yet they are not sunk with earthquakes or destroyed with fire and brimstone.” Christian faith, as well as republican principle, demanded the Jeffersonian solution: “According to our best judgments, we cannot pay legal taxes for religious services, descending even to the grade of a chaplain for the legislature. It is disrobing Christianity of her virgin beauty—turning the churches of Christ into creatures of state—and metamorphosing gospel ambassadors to state pensioners.”

Not surprisingly, the religious issue became involved in party politics. In opposing the Federalists, the Republicans appealed to the dissenting sects and necessarily opposed the clerical establishment, which was violently anti-Jeffersonian. The government passed briefly into Republican hands in 1807, and under Governor James Sullivan they endeavored to enact a reform bill. It failed. But the Massachusetts system was rapidly being undermined by dissenter resistance, variant practices in the towns, litigation and court decisions, and, finally, by divisions within the Congregational church itself. In 1811 the legislature passed the Religious Freedom Act, which exempted unincorporated religious societies from the payment of the parish taxes, thereby placing the dissenters on an equality with the Congregationalists in respect to supporting their own ministers. The law ended the annual scramble of the sects, often succeeded by long drawn-out lawsuits, for their shares of parish tax money. Staunch defenders of the third article assailed the law, saying it opened the door to evasion, and they foresaw a flight from the parishes in order to escape payment of religious taxes.

By 1820 the inherent contradictions in the Massachusetts experiment were tearing it apart. To these difficulties were now added those produced by a deep cleavage in the orthodox church. Unitarianism had grown up within that church. Adherents of this milder, rationalistic faith wished ministers of their own persuasion, and so intradenominational disputes between Unitarians and Trinitarians rocked the church already besieged by the host of dissenters. As their following increased in the eastern towns, though still a minority of the faithful in most instances, they seized upon the parish system and by polling majorities in town meetings took over scores of churches, forcing the orthodox to form new societies on a voluntary basis. Thus victimized by the unified town and parish system, many Congregationalists turned against it and lost interest in state-supported religion. The dissenters won some wholly unexpected allies. Culminating two decades of bitter controversy, the courts upheld the Unitarian claims in the case of the Dedham church in December 1820, just as the third article came before the convention in Boston.

The select committee on the declaration of rights recommended several concessions to American opinion and practice, while at the same time preserving the fundamental principle of the third article. Its coverage was extended to Catholics and unincorporated religious societies. The provision empowering the legislature to enjoin attendance at religious worship was stricken. This far the convention agreed to go. In acting on other parts of the constitution, the delegates eliminated the religious test for officeholders and opened the board of overseers of Harvard to ministers of all denominations. However, the convention balked at the recommendation to give constitutional status to the act of 1811 relieving sworn communicants of dissenting sects from the payment of parish taxes. The reformers, of course, wished to go all the way to the voluntary system; a few, very few, would have liked to strike the third article in entirety. They were repeatedly beaten down. The crucial vote came on January 6, 1820, on the substitute resolution, earlier defeated in committee of the whole, sponsored by Henry H. Childs of Pittsfield. After acknowledging the dependence of civil government upon the piety and morality fostered by the public worship of God, the resolution declared that this end is best achieved by leaving every man free to worship as he pleases and therefore that every society of Christians should be equal in the eyes of the law and empowered to support itself. The resolution fell on a record vote of 136 to 246. Only two counties, Bristol and Berkshire, where denominational democracy and religious liberalism were most advanced, gave majorities for the Childs’s substitute (see Table 1.2). The conservatives then beat back an eleventh hour move to graft the 1811 statute on the constitution. Perhaps the most important change in the third article grew out of the Unitarian controversy. This permitted a Congregationalist of one persuasion to have his tax money appropriated to a minister or society of the same persuasion within the denominational fold; in short, a Trinitarian need not support a Unitarian minister. Although Hoar and others, Unitarians for the most part, viewed this clause as a death blow to the establishment, simple justice required it as long as the fiction of one orthodox church persisted in Massachusetts.

Next to religion the most troublesome problem for the delegates was that of representation in the legislature. suffrage, although considered, was a minor issue. Few men otherwise qualified were excluded from the franchise by the constitutional requirement of a freehold worth £60 or productive of an annual income of £3, roughly translated as $200, or $10 (in American currency of 1820). Even this limitation was loosely enforced. Actual practice, if not the law, approximated universal male suffrage. Reformers were more concerned with the expediency than the justice of the requirement. A resolution to abolish it passed by a substantial margin, only then to be reversed when conservatives like Josiah Quincy held up the specter of a propertyless rabble multiplying in the new factory-towns and assailing the liberties and estates of the commonwealth. The convention quickly settled on an amendment extending the suffrage to men qualified by age and residence who also paid any tax to the state or county. This tax-paying qualification merely brought the constitution abreast of prevailing practice.

In accordance with the theory of balanced government and wishing to secure property against the masses, the framers of the Revolutionary constitution had based representation in the house on numbers, in the senate on property, or, to be strictly accurate, on the proportion of taxes paid by the senatorial districts. The select committee on this subject recommended no change. The delegates, in committee of the whole, signified their agreement. Then Henry Dearborn, in a long, impassioned speech—barely summarized in the Journal of Debates—attacked this “aristocratical principle” of property representation in the senate and offered a resolution to base that body on population by districts. Amazingly, the delegates adopted it without debate. When it was pointed out that the resolution was inconsistent with the rest of the report on the legislature branch, the delegates voted to reconsider. For the first time in the convention, the conservatives brought out their big guns against this “subversion of fundamental principle.” John Adams rose in defense of the property basis of the senate, recalling the doctrines of his elaborate Defense of the American Constitutions in 1787. The long speeches of Webster and Story made deep impressions and may, indeed, by sheer power of argument, have reversed the convention’s decision on this question. As Story pointed out, the actual difference between property and numbers was not great, and it was likely to diminish because of the rapid growth of population in the eastern cities, particularly Boston, which paid the largest share of taxes and were, therefore, favored in senatorial representation. Nevertheless, whether viewed in the light of principle or of power, the system was undemocratic. Western delegates could readily demonstrate that while it assigned six senators to Suffolk, it gave the three valley counties, twice as populous, only four. Suffolk and Essex together held one-third of the representation in the senate. The interest of a majority of the delegates clearly supported a senate based upon population, but the majority withered under the conservative counterfire. When the Dearborn resolution came to a vote in the committee of the whole on December 15, it was rejected 164 to 247. It met the same fate later in the convention.

The question of the senate was inseparable from the question of representation in the house. A meaningful balance required that the two chambers of the legislature be based upon different principles that had some logical relationship. If under the revised constitution representatives were to be paid out of the state treasury for the first time—and most delegates agreed they should be—this was further reason for basing the senate on taxes. Moreover, men had generally assumed, quite correctly, that the composition of the house in Massachusetts gave a preponderant representation to the small towns at the expense of the large; and since the report of the legislative committee looked to a continuation of this system, though on a reduced scale, it seemed unjust to expect the large towns to give up their superior position in the senate. The organization of the legislative branch in the constitution of 1780 embodied a compromise as well as a balance, and not only between property and numbers but also between the large eastern towns and the hundreds of hinterland villages. What the former had gained in the senate had to a considerable extent been off set by the latter’s gain in the house. Everyone in the convention recognized the reciprocity. Dearborn confessed, after the initial acceptance of his resolution on the senate, that he had no idea of making it popular and at the same time leaving representation in the house on a town basis. The other part of his plan, only now introduced, was to apportion representatives according to population in new electoral districts of about 13,000 inhabitants. The plan was thoroughly democratic; even Story conceded its justice. Moreover, it had the merit of skirting the critical problem of a vastly overpopulated house of representatives—five hundred members under the existing system of town representation. This was one of the problems that had brought the convention into being. It had to be solved.

Three solutions were offered. Dearborn’s, of course, simply abandoned the historic representation of the towns, deeply embedded along with the parish and the town meeting in Massachusetts tradition. And this was enough to sink the plan regardless of other considerations. The Worcester leader Levi Lincoln proposed a kind of federal system in reverse—corporate town representation in the house, the whole amounting to 334 members, and a popular senate. By mixing separate principles in the composition of the bicameral legislature, the plan allegedly met the old Whig criterion of balanced government. But the house remained too numerous and the representation grossly unequal. According to the analysis of William Prescott, 169 small towns, less than one-third the entire population, would choose a majority of the house. “Thus the liberties of the majority would be put in subjection to the minority in violation of the principle of every free government.” Obviously something was amiss when a Boston Federalist could appeal to majority rule and equal rights against a Jeffersonian outlander! Lincoln’s plan was buried in the committee of the whole, and he did not later attempt to resurrect it. The convention, by a substantial majority, gave its support to the plan of the legislative committee. Corporate towns of 1,200 inhabitants were to elect one representative, those of 3,600, two, and so on. Over one-half the towns of the state were thus deprived of annual representation; they were permitted, however, to send a delegate every other year or to join with neighboring towns similarly situated to meet the minimum population required. The new system would result in a house not exceeding 275 members. A majority of the delegates of only two counties, Plymouth and Bristol, voted against the revised plan (see Table 1.2).

Of the other issues in the convention, the one touching the independence of the judiciary stirred the most controversy. Story was a fanatic on this point; and as chairman of the judiciary committee, he reported an amendment requiring a two-thirds vote of both chambers, instead of the simple majority of the 1780 constitution, before the executive could remove a judge. The measure failed to pass. But Story gained some small additional protection for judges and single-handedly defeated a motion, reported to the convention from the great committee, empowering the legislature to reduce the salaries of judges. (Unfortunately, his speech on this question, together with the debate, which he described as the most brilliant of the convention, have not been preserved.) As in other states, the common provision of the early constitutions for an executive council to advise or act in concert with the governor gave trouble in Massachusetts. Here, however, since the governor was elective and the council had little authority, the question raised no fundamental issue of executive power and responsibility. The problem was that nine of the councillors (the tenth being the lieutenant governor) were elected from the senate on the joint ballot of the two chambers. This upset the senate; often the senators elected to this fifth wheel of the government declined to serve; and a council adhering to a party opposed to the governor caused disharmony in the executive branch. Reformers wished either to abolish the council or to make it elective of the people. It was retained, however, with a reduced complement of councillors to be elected by both chambers from the people at large. Before finishing its work, the convention wisely added a provision for popular amendment of the constitution, thereby postponing to a far distant day any repetition of their ordeal.

The convention adjourned sine die on January 9, 1821. Since its task was to revise the old constitution, not to frame a new one, the mode of presenting the amendments to the people for ratification was a difficult question. Webster saw the problem clearly, and midway in their proceedings the delegates adopted his resolution for grouping the amendments in distinct articles, so arranged “that, upon the adoption or rejection of any one or more of them, the other parts of the constitution may remain complete, and consistent with each other.” Applying this method, the convention proposed fourteen articles of amendment, which were explained in an “Address to the People.” In accordance with the act calling it into being, the convention directed that these articles be presented for ratification in town meetings by men qualified to vote for representatives in the legislature.

On April 9 the towns voted, the selectmen of each forwarding the returns to an examining committee appointed by the convention. The people approved nine of the articles, including the extension of the franchise, abolition of the test oath, the amendment article, and a stiff ban on plural officeholding. They disapproved of those articles, 1, 2, 5, 9, and 10, that the convention had labored hardest and longest to perfect (see Document 10). Article 1 embodied the revision of the third article; 2 altered the political year and provided for one, instead of two, annual sessions of the legislature; 5 was the article on representation, both house and senate, including the changes in the executive council; 9 contained new safeguards for the judiciary; and 10 confirmed the charter and the historic rights and privileges of Harvard University, except to open its board to clergy of any denomination. This article, in fact, was rejected by the largest majority of all—only Suffolk County favored it—suggesting that the democratic prejudice against Harvard, or perhaps against private corporations generally, ran wide and deep. The representation article also lost by a large majority. An analysis of the vote gives no clue to the reason. Essex returned the largest margin against it; two of the valley counties narrowly approved it.

With respect to the article on religion, however, it seems clear that the nearly 2 to 1 rejection was founded not on opposition to the minor changes proposed but on opposition to its retention in any substantial form. The article encountered strongest opposition in Bristol and Berkshire, whose delegates in the convention had supported the reform minority. Those from Bristol voted 2 to 1 for the Childs substitute, while their constituents voted 17 to 1 against the amended article. The three eastern-most counties returned modest majorities in favor, while the counties from Worcester westward voted 2½ to 1 against it. In all probability the convention’s revision pleased neither side, or any side, in the religious disputes of the commonwealth.

The Massachusetts experiment in state-supported religion deteriorated rapidly during the next decade. A legal system of public worship could not be maintained in a community characterized by a multiplicity of sects and, partly for that reason, by a profound regard for religious liberty. Bowing to the inevitable in 1833, the legislature sent to the people an amendment of the third article, basically the same as Childs had proposed a dozen years before. It was ratified by a majority of 10 to 1. In time, too, the people reformed the political year, altered the system of representation in the house, and placed the senate on a popular base.

The amendment article thus proved to be the most important reform introduced into the Massachusetts constitution in 1821. Democracy expressed itself more effectively through the slower and more cautious amendment process than through the convention medium. At first glance the vote on ratification of the fourteen articles might suggest that the populace was even more conservative than the convention. On closer inspection, however, it is apparent that the people approved the articles that came up to the democratic standard and disapproved those that did not. In general, then, the popular vote expressed a democratic judgment on the work of the convention. Marshaled and controlled by a conservative elite, the convention was a highly successful rearguard action against the advance of democracy. The speeches of Webster and Story, in particular, gave intellectual form and content to the conservative resistance everywhere. Significantly, the North American Review, the Boston quarterly and citadel of New England letters, devoted an article to these speeches, which at once became famous and which remain even today the most memorable features of the convention. But the resistance could not endure. As democratic leadership matured and acquired effective political organization, the electorate gradually reformed the historic constitution that was so little disturbed by the convention of 1820–1821.

CHRONOLOGY

1. The Test Oath ^*

The question of religion in its connections with civil government was first discussed in the convention on December 4. At issue was the test oath—a declaration of belief in the Christian religion—required of all elective officials. The select committee on this chapter of the constitution called for abolition of the oath. Daniel Webster, the chairman, opened the debate with a justification of the change on grounds of expediency rather than of right. The thirty-eight-year-old Webster, though a native of Massachusetts, had not yet embarked on his distinguished political career in that state. He had moved to Boston to practice law in 1816, having served for several years in Washington as a New Hampshire Congressman. He apparently held no firm convictions on the question before the convention.

The speakers who followed him did, however, James Prince, of Boston, condemned the test oath on the principles of religious liberty. Joseph Tuckerman, a Unitarian minister who later became famous for his ministry to the poor of Boston, held that a Christian people had a right to demand Christian rulers. James T. Austin, a prominent Boston attorney, Republican, and legislator, concisely and cogently defended the resolution.

MR. WEBSTER. It is obvious that the principal alteration, proposed by the first resolution, is the omission of the declaration of belief in the Christian religion, as a qualification for office, in the cases of the governor, lieutenant governor, counsellors and members of the Legislature. I shall content myself on this occasion with stating, shortly and generally, the sentiments of the select committee as I understand them on the subject of this resolution. Two questions naturally present themselves. In the first place; have the people a right, if in their judgment the security of their government and its due administration demand it, to require a declaration of belief in the Christian religion as a qualification or condition of office? On this question, a majority of the committee held a decided opinion. They thought the people had such a right. By the fundamental principle of popular and elective governments, all office is in the free gift of the people. They may grant, or they may withhold it at pleasure; and if it be for them, and them only, to decide whether they will grant office, it is for them to decide, also, on what terms, and with what conditions, they will grant it. Nothing is more unfounded than the notion that any man has a right to an office. This must depend on the choice of others, and consequently upon the opinions of others, in relation to his fitness and qualification for office. No man can be said to have a right to that, which others may withhold from him, at pleasure. There are certain rights, no doubt, which the whole people—or the government as representing the whole people—owe to each individual, in return for that obedience, and personal service, and proportionate contributions to the public burdens which each individual owes to the government. These rights are stated with sufficient accuracy in the tenth article of the bill of rights in this constitution: “Each individual in society has a right to be protected by it, in the enjoyment of his life, liberty, and property, according to the standing laws.” Here is no right of office enumerated; no right of governing others, or of bearing rule in the State. All bestowment of office remaining in the discretion of the people, they have, of course, a right to regulate it, by any rules which they may deem expedient. Hence the people, by their constitution, prescribe certain qualifications for office, respecting age, property, residence, &c. But if office, merely as such, were a right, which each individual under the social compact was entitled to claim, all these qualifications would be indefensible. The acknowledged rights are not subject, and ought not to be subject to any such limitation. The right of being protected in life, liberty, and estate, is due to all, and cannot be justly denied to any, whatever be their age, property, or residence in the State. These qualifications, then, can only be made requisite as qualifications for office, on the ground that office is not what any man can demand as matter of right, but rests in the confidence and good will of those who are to bestow it. In short, it seems to me too plain to be questioned, that the right of office is a matter of discretion, and option, and can never be claimed by any man, on the ground of obligation… . However clear the right be, (and I can hardly suppose any gentleman will dispute it) the expediency of retaining the declaration is a more difficult question. It is said not to be necessary, because in this Commonwealth, ninety-nine out of every hundred of the inhabitants profess to believe in the Christian religion. It is sufficiently certain, therefore, that persons of this description, and none others, will ordinarily be chosen to places of public trust. There is as much security, it is said, on this subject, as the necessity of the case requires. And as there is a sort of opprobrium—a marking out for observation and censorious remark, a single individual, or a very few individuals, who may not be able to make the declaration, it is an act, if not of injustice, yet of unkindness, and of unnecessary rigor to call on such individuals to make the declaration. There is, also, another class of objections which has been stated. It has been said that there are many very devout and serious persons—persons who esteem the Christian religion to be above all price—to whom, nevertheless, the terms of this declaration seem somewhat too strong and intense. They seem, to these persons, to require the declaration of that faith which is deemed essential to personal salvation; and therefore not at all fit to be adopted by those who profess a belief in Christianity, merely in a more popular and general sense. It certainly appears to me that this is a mistaken interpretation of the terms; that they imply only a general assent to the truth of the Christian revelation, and, at most, to the supernatural occurrences which establish its authenticity. There may, however, and there appears to be, conscience in this objection; and all conscience ought to be respected. I was not aware, before I attended the discussions in the committee, of the extent to which this objection prevailed… . For my own part, finding this declaration in the constitution, and hearing of no practical evil resulting from it, I should have been willing to retain it; unless considerable objection had been expressed to it. If others were satisfied with it, I should be. I do not consider it, however, essential to retain it, as there is another part of the constitution which recognizes in the fullest manner the benefits which civil society derives from those Christian institutions which cherish piety, morality and religion. I am conscious, that we should not strike out of the constitution all recognition of the Christian religion. I am desirous, in so solemn a transaction as the establishment of a constitution, that we should keep in it an expression of our respect and attachment to Christianity;—not, indeed, to any of its peculiar forms, but to its general principles.

MR. PRINCE… . There are, said Mr. P., two distinct rights belonging to man—UNALIENABLE and NATURAL—among those of the first class are the rights of conscience in all matters of religion. Now I hold that religion is a matter exclusively between God and the individual; and “the manner of discharging it, can be directed only by reason or conviction; and thus, I repeat it, this right is in its nature an unalienable right, because it depends on the evidence as it strikes his mind; and consequently the result is what is his duty towards his Creator.” And therefore, as man owes supreme allegiance to God, as the Creator, and as the undivided governor of the universe, he cannot absolve himself, nor can others absolve him from this supreme allegiance; and hence, on entering into a social compact, the rights he gives up, and the powers he delegates must be tributary to, and in subordination to this high and first allegiance—and among the first enumeration of rights and duties in the present constitution of the Commonwealth, this principle is recognized: “It is the duty and the right of all men (says the constitution) to worship the Supreme Being, the great Creator and preserver of the universe, and none shall be molested or restrained for worshipping God in the manner and season most agreeable to the dictates of his own conscience, nor for his religious professions or sentiments.” This is reasonable, wise and just. In forming or revising the social compact, let us then take heed, that we do not insert or retain any principle, which by possible construction may interfere with, or abridge such sacred, such inestimable rights by an inquiry into opinions for which man is only accountable to his God. Social duties are between man and man. Religious duties are between God and the individual. While we are solicitous to “render unto Caesar the things that are Caesar’s”—take heed, I beseech you, that “you leave unto God, the things that are God’s.” Nor will the argument hold good that because during the forty years the test has been engrafted into and been in force under the present constitution, no extensive evils have presented themselves, and therefore it is inexpedient to expunge it from the constitution, lest it might be construed as an indirect abandonment of the cause of Christianity. On revising the constitution, every unnecessary point, even the most trivial, ought to be stricken out, and every possible evil guarded against. The American revolution fully recognizes this principle;—it was not the pressure of evils actually existing which induced the patriots of the revolution to resist the encroachments of Great Britain, but it was a dread of the consequences which they believed would result from submitting to the doctrines advanced by the mother country—hence, I repeat it, it is not from the multiplicity of cases which have occurred, whereby men of sterling integrity, pure morals and great strength of intellect may have been precluded from participating either in the advantages of office, or assisting in the public councils, but it is that by continuing this principle in the constitution you may preclude them… . I submit then the following positions, first, admitting the right, (which, however, I do not) of the citizens when forming a social compact to prescribe such terms as a majority may deem expedient and proper, yet I hold it to be unjust to introduce a principle into the compact which, while it provides that the individual shall afford his personal aid, and risk his life for the common defence and yield up all his property (if need be) for the maintenance of the government and its laws, yet virtually precludes him from participating in any of the advantages resulting from offices, or from any share in the administration of the government, because he differs on a subject with which society has but a doubtful right to interfere; although in point of morality and strength of intellect he shines as “a star of the first magnitude.” Secondly—I hold that this act of injustice toward the individual is neither politic nor expedient; first, because as before observed, it may deprive society of talent and moral excellence, which should always be secured and cherished as one of the best means of preserving the prosperity of the Commonwealth; and secondly, while it may thus exclude men possessing such useful and amiable qualification, yet it is no effectual safeguard whereby to keep out ambitious, unprincipled men from office, or a seat in the public councils. And, I moreover hold, that the cause of Christianity doth not require such a qualification to support it. This religion is founded on a rock and supported by a power which humanity cannot affect—it does not want the secular arm to defend it—its divine origin, and its own intrinsic merit, ever have been, and ever will be, its firmest support. What have the powers of the world to do with such a religion? Experience has demonstrated that when left to the umpire of reason and of argument, it has triumphed the most brilliantly over the attacks of infidelity. Inquisitions, test acts and fanaticism, with their gibbets—their racks—and their faggots, may produce martyrs and hypocrites, but such writers as Watson¹ and Paley have displayed its true character by arguments, which have put infidelity in the entire back ground. And may I not add from experience that in those countries where there are religious tests, they have not been productive of any advantage; even in that nation from whom many of us derived our origin, and where, in addition to a test act, the most solemn of the Christian ordinances are obliged to be adhered to as an additional qualification for office—there is either an almost total evasion, or the compliance is often made under circumstances which, while it gives pain to many a serious Christian, excites mirth in the breast of every infidel. I also believe the qualifications of candidates ought to be confided to the electors, who generally take them from the neighborhood, and will therefore be the best judges of their moral and mental powers, and should it unfortunately happen that an unfit citizen has been introduced into office—the electors, so long as virtue, patriotism and Christianity predominate, will avail themselves of the frequency of elections to obtain a remedy by a change of character; and that the evil will be much sooner remedied than if it is left to be done through the crucible of a test act. I moreover think, that while the scriptures seem to reprobate the presumption of demanding, and the fallacy of trusting, to mere professions of faith, they plainly point to the policy of preferring a trust in moral worth and excellence… . In making the aforegoing observations, I hope it will not be considered as in any manner intending to weaken the cause of Christianity or of aiding the cause of infidelity. I make them because I verily believe, in forming or revising the social compact, we ought wholly to exclude every principle which by possible construction may interfere with the consciences of men, thereby leaving them and their religious opinions where alone they ought to be left, “to Him who searcheth the heart and knows our inmost thoughts.”² Whether the individual has or has not formed a correct religious opinion is nothing to us, as civilians.

“For modes of faith, let graceless zealots fight,

His can’t be wrong whose life is in the right.”³

Indeed, sir, I think that so far from injuring of the Christian cause, I am aiding it—when doubting men are left to the freedom of their own wills, they will be the more apt to listen to the arguments in support of Christianity than when shackled by test acts, or any other interference of the civil government… . Believing then sir, as I verily do, that to retain any religious test, however liberal, is neither required for the safety of religion, nor for the safety of the Commonwealth; that it is unjust in principle—fallacious as to the effect to be produced—pernicious in its consequences—and an unwarrantable assumption of the unalienable rights of a citizen, and also that it is repugnant to one of the most essential moral precepts of Christianity which inculcates, “that whatsoever I would that men should do unto me, this I ought to do unto them”; I hope the principle to which I have alluded will be left out of the constitution, now that we are called to revise it… .

… MR. TUCKERMAN of Chelsea observed that he supposed the question now before the committee to be, whether the religious test in the constitution of 1780, shall be retained, or whether the resolutions now proposed by the select committee shall be adopted. He observed that, at the hazard of being accused of bigotry, and narrowness of mind, he must take the ground of defence of the constitution on this subject, as it now stands. He said that, in reflecting upon the test, he had not anticipated the suggestion of any doubt concerning the right, should this Convention have the disposition, to retain it. The constitution declares every man to be eligible to all the high offices of the State, on the condition of certain prescribed qualifications. Yet if there was any probability that any people of color would be elected to fill either of these offices, he presumed that no doubt would be felt, either as to the right, or the propriety, of their exclusion. There would, without doubt, be a provision in the constitution for their exclusion; or, it would be required, that these offices should be holden only by the white inhabitants of the Commonwealth. And if, as is without doubt a fact, ninety-nine out of a hundred of the people of this Commonwealth are in their faith Christians, it seems to be as unquestionable as any one of the rights of a people, to require that their rulers shall, in their faith, be Christians… . He would say no more on the subject of the right. He thought that, on no good ground, it could be contested. The great questions then on the subject regard the expediency of abolishing the existing test, and the propriety of the substitution proposed in the resolution. On the question of giving up the test, he remarked, that an argument for its abolition was, that the State would thus obtain, in its high and important offices, the talents of a few men, who do not believe the Christian religion. He replied, that during forty years in which this test has stood in our constitution, we have never wanted men, in sufficient abundance, for all the offices in which it is required. And that no apprehension can be felt, whether we shall continue to have candidates enough, who will not shrink from the test, for every department of government which they can be called to fill. The test is so very broad, that it excludes no one of all the denominations of Christians. He remarked, that we should be exposed to much confusion and error on this subject, if we should consider the test now required, as having any relation to the very objectionable tests which have sometimes been required. The test established by the English constitution, for example, required a belief of the thirty-nine articles of the church of England. He would resist, with all the energy of the small powers that he possessed, any definition in the constitution, of what Christianity is, as a faith to be required of those who may be elected to office; and had he not heard the suggestion of the honorable chairman of the select committee, that there were gentlemen in that committee who thought that a solemn declaration of belief of the Christian religion could be made by those only, who were assured also of an eternal interest in the promises of our religion, he should have thought that every man, who had been convinced by evidence of the truth of this religion, and who felt the divine authority of its doctrines and precepts, would conscientiously have made this declaration. He respected the opinions of gentlemen, who gave this construction to the language of the test; though he could not think the language to be fairly susceptible of this import. As he understood the declaration, it implied only that belief, which is a security to the people, that their rulers receive the great fundamental principles, which are the best security of good laws, and of a good administration of government. He said that, in his view, the most beautiful feature of those parts of our present constitution, which concern religion, is, that it recognizes Christianity as the religion of the State, in the great principles in which its various sects agree; leaving unnoticed those in which they differ. Any man therefore, he thought, who believes that Christianity is a divine revelation, can make the declaration now required, and comprehend in that declaration, all that it is intended to embrace.

On the question of the propriety of abolishing the test, he said, his objections were still more solemn. Either the religion of Jesus Christ is from God or it is not. Either we are accountable to God for all our means and opportunities of advancing the interests of this religion, or we are not. If our religion be from God, and if it be our duty, by all means which are consistent with its spirit, to promote its progress, it is a question on which we ought to pause, whether we shall open the door of office indiscriminately to those who believe, and to those who reject, this revelation of God’s will. We all know the descending influence of example. If men should be elevated to high and responsible stations, who are enemies of Christianity, may we not look with some apprehension to the consequences? Sir, if this test had not been established in 1780, I am not certain that I should now have been disposed to advocate it; I might have felt a sufficient security in the election of Christian magistrates without it. But it has now become associated with the sentiments, and habits, and feelings of forty years; and if you now remove it, you declare to the people, and they will not misunderstand the declaration,—that you do not deem it to be of importance that our magistrates should be Christians. Changes which affect long established associations should be made very cautiously. The gentleman from Boston cites to us the words of our Lord, render to Caesar the things that are Caesar’s; I hope that we shall feel the importance of the precept. But my New Testament does not add, “leave to God the things that are God’s.” I am told to render to God the things that are God’s. And, sir, we owe it to God, to Christ, and to our own souls, to do what we may for the extension and security of our faith as Christians; and to give our influence, whatever it may be, to the election of magistrates, who will make laws, and administer justice, in the spirit of Christianity. On these grounds I am opposed to the resolutions of the committee; and wish that the test, from which no inconvenience has yet been experienced, may be retained in the constitution… .

… MR. AUSTIN… . He did not agree with the chairman of the select committee who reported the resolution, that we had a right to demand this qualification. On the contrary he held that we had no right to demand it—that every one who contributes to the expenses of government and bears his share of the public burthens, has a right to be a candidate for popular favor. This was the general rule. He admitted there were exceptions. We have the right to demand the qualifications of age, property and residence, because they are necessary to insure the proper performance of the duties of the office. But this qualification related to opinions which do not bear upon the duties of government and are not connected with the public safety. This was the distinction—if we pass this line there is no place to stop. No one would say that a belief in Christianity was indispensable in legislators. If the laws would not be well made—if the government could not be carried on—if society would be in danger without a declaration of belief in the doctrines of Christianity, then this would be within the exceptions to the general rule. But it is argued that although it is not necessary for the preservation of civil society, it is necessary to show our respect for the institutions of Christianity. The first is a legitimate purpose, the other an unlawful one. If it was agreed that it was proper that all those who held public offices should believe in the Christian religion, he was willing to say that he held in little respect the judgment of any one who in the present enlightened state of society, and with the present means of information, should not be satisfied with the evidences of Christianity, and still less the integrity of any one who should disbelieve without examination. But this was merely his opinion as an individual. And who should judge the people—it is their right—let them judge—give them means of information. But place him who believes, and him who sneers at religion, side by side as candidates for office, and let the people decide between them. They may be trusted to decide correctly. This is the theory of our government. He proceeded to the question of expediency. Has the test a good tendency? The test was relied upon as a security, and the people have sometimes been imposed upon, because they supposed that the government would look to the object. But the test was evaded, and the laws brought into contempt. The Christian religion needs not oaths and tests to protect it any more than it does force. Its empire will be maintained and extended by neither the one nor the other, but the only aid which can be given to secure its triumph, is the diffusion of knowledge. It was argued that the test being a part of the present constitution, it ought not to be taken out. By taking it from the constitution we no more violate the principles adopted by the framers of this instrument, than they violated principles previously established. In 1631, it was ordained that no one should be a freeman, and have the right of voting, who was not a church member. This he contended was the true theory if we would have a religious test. We should go to the source—stand at the ballot box, and as each individual came with his vote in his left hand, require him to hold up his right, and swear to his belief in the Christian religion. This was the system of our ancestors, but it was afterwards abolished, and in 1651 they adopted a stricter rule of exclusion. They required that the voter should not only be a member of the church, but should believe in the Christian religion, as it was proclaimed by the orthodox writers of the day. At the time the constitution was adopted, by a belief in the Christian religion was meant an adherence to the orthodox church of the day. This interpretation would exclude very many whom at the present day gentlemen would not exclude. By taking out this provision of the constitution, we adopt the spirit of those who framed that instrument. It was not very discreditable to them, if, after forty years’ experience of the test, it should be found inapplicable to our present condition, and he did not think that in rejecting it we should show any disrespect to them or to religion itself. We only say it is unnecessary to mix the affairs of church and state… .

2 The Third Article ^*

Not until December 20 was the report of the committee on the bill of rights taken up in committee of the whole. Debate immediately centered on the aggravating third article. After the delegates endorsed the recommendation to strike the antiquated provision empowering the legislature to enjoin attendance at religious worship, Leverett Saltonstall moved that except for two further amendments of a minor nature the third article be left undisturbed. The Salem attorney and legislator with an old Massachusetts name was a prominent member of the small eastern conservative group that dominated the convention. So too was Samuel Hoar, Jr., of Concord, who spoke in favor of Saltonstall’s motion. Enoch Mudge, a delegate from the incipient industrial center of Lynn, in Essex County, then explained why he opposed the motion.

The next day the motion was passed over in favor of Childs’s resolution, which would more clearly test the opinion of the convention on the basic issue. Henry Halsey Childs came from the Berkshire town of Pittsfield, long a center of religious liberalism and Republicanism. A physician by profession, he also served in the legislature from 1816 to 1827. The debate lasted two days. Many delegates spoke for the substitute. The remarks of a dissenting minister from Beverly, N. W. Williams, were particularly pointed. Saltonstall delivered the longest and most forthright speech against the motion. Soon after he finished, the question was called, the motion defeated.

MR. SALTONSTALL moved to amend the report by striking out the third and fourth resolutions, and substituting a resolution declaring that it is not expedient to make any further amendment to the third article of the declaration of rights than to substitute the word “Christian” for “Protestant,” and also to provide that real estate shall be taxed for the support of public worship in the town, parish or precinct in which it shall be situated.

MR. HOAR of Concord said it appeared to him, that the amendment proposed by the gentleman from Salem, must necessarily bring the whole subject of the third article into discussion. If it should be adopted, it would show that the committee were in favor of the article as it now stands, in preference to the substitution proposed by the select committee, or by the gentleman from Chester [Mr. Phelps], or from Pittsfield [Mr. Childs], and to any other which may be off ered. He was desirous that the present amendment might be adopted. He was on the select committee, but did not vote with the majority in reporting these resolutions. If they were wrong, therefore, he was not responsible for their defects, and if right, he was entitled to no part of the credit. He considered the alteration proposed by the report of the committee to be in substance pernicious. It was going to change one of the fundamental principles of our government. If there was in our constitution one principle more than another on which the public happiness and welfare depended, and which was entitled to greater favor, he thought it was this; and it was here peculiarly proper to call on gentlemen for an application of the rule so often brought forward, that before any principle in the constitution was changed, it ought to be shown clearly and decisively that experience had proved it capable of producing an ill effect on the community. If this was acknowledged to be an important and an operative principle and not a dead letter, and if the effect produced by it was not a bad one, but the contrary, it ought to be retained. He was unwilling to destroy the effect of this principle. We had had experience of its beneficial operation, not for forty years only, but for more than a century; and he would not exchange this experience for any theory however wise in appearance. Theory might deceive, but experience could not. And if any experience was useful, that of the particular community for which the constitution was intended, was to be preferred. Although other countries may have been able to do without this principle, it by no means followed that it would do no good here. He knew that a distinguished individual in Great Britain had professed his ability to make constitutions and laws for all latitudes, and all habits and manners that could be named; he should however give more credit to our own experience. If gentlemen who wish a change should show the operation of the third article to be prejudicial to this country, he should cheerfully vote with them; otherwise he should think it ought to be retained. He said it had been judicially determined that by the law of 1811, real estate, belonging to non-resident proprietors of a different sect or denomination, cannot be taxed for the support of public worship in the town where it is situated. This report proposes to extend to all Christians, the rights which were peculiar to persons of a different denomination from Congregationalists. It gives power to a Congregationalist, for any reason, to change his religious instructor, and prevents his being taxed in any place except where he attends public worship; the consequence will be, that all lands of non-resident proprietors will be exempted from taxation for the support of religious worship in any place. Was not this a great evil? He could name towns in which one third part of the land was owned by citizens of different towns, and was assessed for the support of public worship in the towns where it was situated. Deduct this portion of the taxes, and in many towns it would in a great degree derange their system of supporting public worship. It might be supposed that this evil would be remedied on account of tenants being liable to be taxed. But there were a great many towns to which he referred, where the lands were not occupied by tenants, but used by the non-resident owners merely as pastures for cattle. Another inconvenience and injustice would arise from adopting the report that these lands would escape all taxation, as the assessors in the towns where the owners lived would not know of lands so situated, or would be ignorant of their value. For this reason alone, the report ought not to be accepted, and it was incumbent on those in favor of it, to show something equivalent to the derangement to the system of taxation. But although this inequality would be created by the report, yet this was but the dust of the balance, compared with the rest of the consequences… . Mr. H. spoke of the detriment which would happen to that class of society who depend for their religious instruction on public worship. He spoke only as a citizen and not as a divine. He considered religious instruction, in a political point of view, to be as necessary as literary instruction. It might be said that religion would be supported voluntarily. He wished for better evidence of the fact than he had had; and if true now, it might not be hereafter. Much had been said about inalienable rights; he asked if this meant that society could not do what was most for its good? If a man could not give up any rights for his greatest benefit? No interference with the rights of conscience was intended or felt from the first article. To say that the Legislature shall not regulate anything relating to religion, was to say that they shall not encourage any virtues or punish any vices or crimes. If we could trust to anything in history, it was to this, that our prosperity, and what most distinguishes Massachusetts, is owing to our provision for the support of religion and morality. He considered these a great support of civil society. He believed the only alternative was, to support it by religion and morality, or by a standing army. The proposition of the gentleman from Salem, was only to leave the constitution where it was before. It was not to repeal the law of 1811, which he considered as a bad law, but only to leave the Legislature the power, if necessary, instead of tying up their hands for all future time. He compared the provision for religious worship to that for town schools: those who have no children pay as great a tax as if they had; and if any person, having children, is not satisfied with the schoolmaster appointed by the town, he takes away his children, but never thinks of withholding his money from the support of the town schools; and yet the principle is the same; it is in fact a stronger case; for a man may withdraw to any religious society, and pay his money where he pleases, only he must pay somewhere… .

MR. MUDGE was opposed to the adoption of the amendment of the gentleman from Salem [Mr. Saltonstall], because it would tend to introduce great confusion and evil. It proposed to give power to societies to tax real estate. Persons of all denominations have made that provision for the support of public worship which they think necessary. They do not wish to incur the trouble and expense of assessing taxes, that they may draw them out for the support of religious worship which they have already provided for in other modes. The arguments which the gentleman who had last spoke had used were precisely those which he would have used, to show that the provisions of the constitution ought not to be retained. He could show in every part of the Commonwealth instances in which great injustice and oppression had been suffered by individuals; he could point to an individual on the floor who had had his property taken from him to the amount of 300 dollars for the support of public worship in a form which he did not approve. But who shall be entitled to the right of taxing the whole property of the Commonwealth? In the town to which he belonged there were five distinct religious societies. Which of them should have the right to impose this tax? Some of the denominations of Christians were conscientiously opposed to the right of imposing any tax for the support of religion. The right therefore of taxing would operate unequally. The Episcopalians, the Baptists, the Friends, had never exercised the right. None he believed but the Congregational denomination had exercised the right. It was therefore granting to them an exclusive right. It had been contended that it was necessary for the support of religion. He did not agree that it was necessary. He contended that it was not. He found that all religious communities, besides supporting their own religious teachers, contributed large sums to the extension of the knowledge of Christianity to other countries. It was not necessary for securing the maintenance of the ministry, and it had a tendency to produce strife and contention. Persons were taxed in societies, who were accustomed to attend religious worship in other societies, and this produced jealousy, strife, ill feelings towards each other. The ministers in many instances do not wish it. They had rather labor with their own hands for their support, than that the stock and property of their flock should be taken and sold for their maintenance. He wished to strike from the constitution a provision that was not necessary for the support of religion, and which tended to produce strife and jealousy. It would reduce all the religious communities to a level, and would introduce a spirit of harmony and emulation for the support of religion, and he believed in a short time the amount of voluntary contribution for religious purposes, would be greater than can now be raised by the hand of power. If we would attend to the subject in its operation on religion, we should find it would have a good effect, to remove all restrictions, which operate to give exclusive privileges to a particular denomination. He wished to have the constitution so amended that there should be no inconsistency in it, and that each religious community should be entitled to equal privileges… .

… MR. CHILDS stated as a general principle, that the right of every individual to worship God in a manner agreeable to the dictates of his own conscience, was one which no government could interfere with. Whenever government had undertaken to exercise an authority in this respect, it was an usurpation, and when this usurpation had been submitted to, the worship rendered was not sincere. In our own government, unless it could be demonstrated that it was necessary to the support of government, and clearly for the interest of the community, it could not be fairly exercised. He would call the attention of the committee to the argument of the gentleman from Boston. He would not admit that he or any other gentleman who would support the report of the select committee felt a greater interest in the support of religious institutions than gentlemen who would advocate the resolution which he had proposed. The gentleman had said that the committee were unanimously of opinion that the support of institutions for religious instruction and worship were essential to the happiness of the people and the good order of society, and therefore ought to be supported by legislative provision. He, Mr. C., would draw a different conclusion from the same premises. He argued that because religious instruction and worship were essential to the happiness of the people and good order and preservation of government, they ought to be left to the free support of every individual, according to the dictates of conscience. He contended that this was the only mode in which religious worship could be properly supported, and the mode in which in practice under the constitution it had been actually supported. The principles of the third article in the declaration of rights had been abandoned in practice, and the resolution before the committee did not deviate from what had been the practice for many years in the Commonwealth—what had been recognized by the Legislature—and from the general sentiment of the people. He believed there was no state where there was so much refinement—so much instruction, and so great a regard for religion as were to be found in this Commonwealth. He was willing to go as far as any gentleman in this eulogy of the character of the people in all parts of the State. But he would not admit that this character was to be attributed to the inefficient and inoperative recognition of a principle in the constitution. It was to be attributed to the general support of common schools—they were the primum mobile of improvement in the Commonwealth. He appealed to the example of the town of Boston where this principle of the constitution had no effect, and yet there was nowhere to be found a higher degree of improvement. The example of Rhode Island had been appealed to as a case to show the necessity of some constitutional provision for the support of religion. But Mr. C. said that the low state of morals and improvement in that state could not be attributed to the want of a compulsatory provision for the support of religion, but to their want of common schools. In Providence, where schools were encouraged, as much attention was paid to the support of religion as in Boston. This amounted to a demonstration that the effect was to be attributed to the general diffusion of education by common schools, and not to any provision for the support of religion. The example of New York, he said, had been appealed to, but there was there the same want of schools as in Rhode Island. It was proposed to substitute the word Christian for Protestant. He called on gentlemen to define Christian. Clergymen differed on the subject. What would be called Christianity by one, would be called infidelity by another. Who knows what will be the state of things some years hence. The time was rapidly approaching when men professing to be Christians will be so opposed that if this part of the constitution is retained, the Commonwealth will be in a state of greater dissension from theological differences than they have ever been from political controversies. The resolution proposed by the select committee, declares the principle thus—the Legislature shall have power to compel the people to support religious teachers; but if gentlemen would examine it in its details, they would find that it would accord in practice with the principle in the resolution proposed by him as a substitute. In this construction his opinion was supported by the argument of the gentleman from Concord yesterday. That gentleman was consistent in his views, and for adopting a consistent course. Mr. C. said he would rather adopt the consistent principle of that gentleman, than the contradictory one of the committee. The proposition supported by him was explicit, and it would be known what was to be depended on. The principle maintained by the committee with the qualifications with which we had accompanied it, would keep the State in constant quarrels and collisions. He repeated that rather than take the report of the committee, he would take the proposition advocated by the gentleman from Concord. Our forefathers had been repeatedly brought forward as affording an illustrious example. He presumed, however, that their example was not to be adopted in everything, and contended that this was a domination of the same kind, and only differing in degree from that which every body at the present day disapproved. He would state how far, in his opinion, government has a right to interfere in matters of religion. So far as the laws can take cognizance of offences committed against good morals, government has a right to interfere; but the principle which leads us to worship God, is beyond the control of government. The gentleman from Concord had said, that if we abandon the means of supporting religious instruction, we should be obliged to resort to a standing army to enforce obedience to the laws. He, Mr. C., would reverse the proposition. Establish the principle that government has a right to compel the support of public worship, and a standing army will be necessary to carry it into effect… .

… MR. WILLIAMS of Beverly said, that some gentlemen seemed to suppose, that all who were in favor of the present proposition, were in favor of removing all religion from the State. He wished to remove this impression. He considered that religion was of great consequence to the Commonwealth, and that the government should protect all persons in the enjoyment of their religious rights and privileges. He was opposed to the present provision in the constitution. He understood that the third article allows a tax which favored one religious denomination, and he understood that the report of the select committee had the same object. He thought the terms of the constitution were not so explicit and intelligible as some gentlemen had asserted. He admitted the premises in the third article, but not the conclusion. He considered that liberty of action and of opinion was given by the constitution to only one religious denomination, that of Congregationalists. He denied that the operation of the constitution had been equal, as the gentleman from Concord had asserted; but he said some persons had been obliged to pay, where they had received no benefit. Sometimes the taxes of minor children were paid to the support of public worship where the father attended, and where they did not. He understood it had been said that persons might go from one society to another at their pleasure. He denied the fact. He mentioned that in one town there was a society, comprising almost all the inhabitants, and that afterwards a society of Congregationalists grew up there, and taxes paid to the treasurer were applied to the support of this worship in consequence of the provisions of the constitution. He thought this was unequal. He agreed that contracts between the teachers and societies ought to be enforced; although some gentlemen thought otherwise. He did not apprehend, if the present proposition were adopted, that the Sabbath would be neglected, that public schools and other benevolent institutions would go down; for we had experience to the contrary. He objected that it was impossible to enforce the present provisions. He thought it unfair to say that religion did not take care of itself originally, because it was protected by its author; for its author had no power to protect it; except so far as miracles went—our Saviour derived no aid from the civil arm. He said that under the word Protestant, which applies to a great many varieties of religion, the government had established one particular denomination. He denied the propriety of mixing civil and religious institutions. When in the dark ages, from which we ought not to take example, the amalgamation of these two distinct things was made, it was done for improper purposes, and was attended with mischief. The people had no right to establish any religion, whether Protestant or Catholic, or any other. He hoped the substance, at least, of the proposition of the gentleman from Pittsfield would be adopted… .

… MR. SALTONSTALL said he rose with unusual embarrassment, because the subject had been so ably discussed, and still more, because of its intrinsic importance; he thought it more important than any that had been considered. It is a trifling question comparatively, how the council shall be chosen, or whether there be any council; whether the senate be founded on valuation or population, or how the house of representatives is modified—we shall have a Legislature so constructed as to insure a free government—but strike out the constitutional provision for the support of public worship, and who can tell the consequences? As was said by the able gentleman from Boston, (Mr. Blake) we have heretofore been inspecting the superstructure—we are now examining the foundation, and he doubted not the result of the examination would be that the foundation would be found laid firm and deep, and capable of sustaining a superstructure that may rear its lofty head to the skies. Two questions arise—first as to the right of government, and second, whether there is anything in the subject—religion—which should prevent or restrict this right. There is no subject upon which such inadequate views are entertained as the duty, and of course the right, of government. A stranger acquainted with this subject, would be surprised at some of our debates upon the rights of the people in framing a government. They have a right to adopt such measures as will promote the happiness of the people and the good order and preservation of civil society. Whatever tends to promote these great objects, it is the duty of government to cherish and support, because these are the objects for which government is instituted. The design of government is not merely the security of life against those who would attack it, and property against those who would plunder it, but to improve the character and condition of those who are subject to it. Mr. S. enlarged upon this point. Is it true then, that the happiness of a people and the good order and preservation of civil government, do essentially depend upon piety, religion and morality? All seem to admit this, and yet their tendency to promote these great objects has not been sufficiently considered. The Christian religion is the great bond of civil society. It teaches us that we are all children of one beneficent Parent, who constantly watches over us for good, who notices all our actions, and will hereafter reward or punish us, as they have been good or evil. It teaches us that God is everywhere present, that he knows our most secret thoughts, that he sees us where no human eye can, and will call us to account when human laws cannot reach us. What an immense effect would the single doctrine of accountability have on the conduct, if properly realized. Our religion also contains the most comprehensive as well as minute directions for our conduct towards each other, declared under the most tremendous sanctions—all our hopes of happiness, all our fears of suffering; directions, which in proportion as they are obeyed, supersede the necessity of human laws. But this is not all—

“How small, of all the ills that men endure,

That part which laws or kings can make or cure.”¹

It is on the observance of duties of imperfect obligation, which human laws cannot reach, but which are the great care of religion, that our happiness essentially depends. Can the regulations of society make us kind and affectionate and faithful in the relations we bear in life? Religion extends to the heart—human laws concern actions alone. Religion cleanses the fountain that it may send forth pure streams to refresh society. Christianity also furnishes a model of the character she would form. Moreover, it reveals to us the perfections of Jehovah, the great object of worship and source of all good, and commands us to be “perfect as he is perfect.” Who then can doubt that the happiness of a people and the good order and preservation of civil government do essentially depend upon such a system of “piety, religion and morality.” These are principles in which all agree—the essential principles of piety, religion and morality. The constitution then asserts that these cannot be generally diffused, but by the institution of public worship and instruction. Mr. S. enforced this. It then follows as a necessary inference, that to promote these great objects, the people have a right to invest the Legislature with the power, &c. (as in the constitution). And why not this as a civil institution, as well as any other means for the same end? It provides a most beautiful and liberal system; making it the duty of towns and parishes to make this provision, but consistently with perfect religious freedom. No denomination is established. The election is given expressly to each society, and of course to the majority of each. There is no more hardship than in being obliged to contribute towards the support of a minister than any other teacher. You may have no children to send to school, or may dislike his opinions, or his mode of instruction, or may be willing to contribute to the same object in some other way—but the tax you must pay. The right of society in both cases rests on the same foundation—the right to tax for the common good; and the reason is the same, the common benefit received, as members of society. Objections have been made to the abstract right of government, and to the particular provisions of the constitution. It is strange how much sensitiveness there is on this subject. No one hesitates to confer on government the power of inflicting any punishment, even death itself, for any crime; but the moment you would attempt by the influence of religion to destroy sin in embryo, an alarm is excited! Mr. S. then answered the objections made against granting the Legislature any power on the subject of religion,—as, that “religion is under the protection of the Almighty, who will take care of his church”; that “his kingdom is not of this world.” His kingdom is not of this world in the highest sense, because our final reward will be in another; but in a most important sense it is, because it would make us good members of society—would prepare us for a better state by making us good in all the relations of life. We are told that the kingdoms of this world will become the kingdoms of our Lord. May not governments coöperate in this glorious design? (Mr. S. noticed other objections, which we have not room to insert.) We are told that the constitution grants exclusive favors to one denomination. Will gentlemen read the constitution? No language can be plainer. It is most explicitly declared that “every denomination shall be equally under the protection of the law.” It is elevated far above all partial considerations—it regards all in the equal favor as all agreeing in the same essential principles, and leading to the same great object, the Father of all. If one parish alone, in some places where there are several societies, have the right of taxing non-resident lands, &c. it is because they have been left in the possession of this right. When a part of a parish (referred to Lynn) became Methodists, they separated, and petitioned for an incorporation with certain powers, which were granted, have they any right to complain? And so of the other societies, and the little remnant is left with the obligation to support public worship, and would you deprive them of their ancient rights? Would you punish them for adhering to the religion of their fathers? There is nothing exclusive in this—it would be the same, should the majority of a parish be of any denomination. This principle is not confined to parishes; it is the same as to towns. When a part is separated, the remainder has all the rights of the town not expressly granted to the new corporation.

It is said also to be inoperative. It is indeed too inoperative, and ought to be made more effectual; but this objection does not well come from those who complain of it as exclusive and oppressive. Some little cases of individual hardship have been stated, and some law suits have grown out of it, in which however those who complain, claim always to have obtained a remedy. What general law is there, or what part of the constitution against which such objections may not be made? They prove nothing against a great principle. But it is said some do not go to meeting, and shall they pay for what they receive no benefit? They do receive a benefit in the greater security of everything dear to them. One objection was not to be expected—“that ministers were now too independent!” The great objection that meets us at every turn is that “religion will take care of itself.” Where has this experiment been tried? Not in Europe. I know not where except in Asia Minor; and where are now the “seven churches”? Those golden candlesticks have long since been removed. We are referred to the support of dissenters in England, and of the various denominations here, but does it appear that this support would have been given, except religion had been established in England, and provided for in our constitution? In this country the fearful experiment is still in process, whether religion will take care of itself, and as far as tried, it has not been successful. Mr. S. then referred to several states, where, except in large cities, very few settled clergymen of education are to be found. As to the unequal operation of this article in Boston, &c., by its own terms it does not operate on any place where voluntary provision is made. Its indirect influence does much everywhere. Mr. S. made objections to the report of the select committee, and showed in what manner he thought the resolution under consideration would produce the same effect as expunging the third article. Is it then expedient to abolish this provision? It is for the advocates of the change to prove this beyond all question. Show the evil it has produced. Point to the oppression it has caused. Whose rights of conscience have been violated? Go not back a century for cause of persecution—point them out under the constitution. If a few cases of individual hardship have happened in the course of forty years, cannot the same thing be said of every part of the constitution? And is it wonderful, under a system extending through the Commonwealth and operating on so many thousands? Mr. S. then argued that there had been no oppression, no general complaint—referred to the small vote for a Convention as proof that no great evil was pressing on the community. But from the clamor that has since been raised, one would suppose we had been groaning under an inquisition! It is strange how men are carried away by sounds. What excesses have been committed under the name of “liberty,” what excitement may be produced in a perfectly free country by the cry of “Priestcraft”—“Law-religion,” and “Toleration!” This subject is closely interwoven with our history. We ought not to make a constitution on abstract principles merely. What arrangement it is expedient to make here, is a very different question from what it might be in some other states, where a similar provision has never existed. The support of religion has always been a great care of our government. Massachusetts is a religious Commonwealth. But for the devotion of our fathers to religion, the spot where we are assembled, might still have been a wilderness. It was this that inspired them with courage to brave the dangers of the ocean, and land on these shores. Their first care was the support of public worship. How soon did they lay the foundation of our venerable University,² and “Christo et Ecclesiae” was it dedicated! As the settlements extended, the little colonies of families always took with them a minister, as the pastor of the flock, and one of the first houses erected was always a place of worship. To provide religious instruction was always an important part of the municipal concerns of each town, and the same laws were made on the subject of schools and public worship. Through the whole period of our history, religion and education had gone hand in hand, and united in forming the character of the people. The temples of worship and instruction have been side by side. Our religious establishments are part of our system of education, schools of a higher order, to furnish instruction in “piety, religion and morality.” How great and good must have been the influence of such institutions. To gather together in the house of God, and there be reminded of their common relation to our Father and to each other; to listen to the sublime doctrines and moral precepts of Christianity—what a great though silent influence must it have had—“it falls like the gentle rain from heaven”—“it distills like the early dew.” Mr. S. then described the manner in which the State had been divided into parishes, each with its pastor, &c.; the salutatary effect produced on the character of the people, and the cause of learning and civil liberty. Mr. S. thought the adoption of the resolution would end in the destruction of very many religious societies, not immediately; the good influence of our institutions may prevent that. Our temples of worship will decay and fall around us. Those beautiful spires that now ornament our towns and villages will fall to the ground. The effect on the character of the clergy will be pernicious; the inducements to enter into the profession will be lessened, and there will be no permanency in contracts with ministers. The dissolution of so many religious corporations will be an act of great violence. We have heard much of the corporate rights of towns—we must not touch them, even if necessary to correct the greatest evil under the constitution, the numerous house of representatives—no, corporate rights and privileges are sacred things. And are not the rights of parishes quite as ancient and sacred and much more important? If any evils, correct them—but why destroy several hundred corporations? Allusions have been made to the errors of our ancestors. Time, which tends to the abuse of all human institutions, has improved ours. The bigotry and persecution are gone—nothing remains but the good influence. Never was there a denomination of Christians less sectarian, and proselyting, and persecuting, than the prevailing denomination in Massachusetts have been under this constitution. I say it with confidence. Some have strange fears of an establishment! But what is to be established? How is it to be brought about? Will the government undertake the work? Have the church accumulated treasures for this purpose? Have we a body of aspiring ecclesiastics aiming at this object? But how can an establishment be made under a constitution which declares that “no subordination of one sect to another shall ever be established by law,” except the broad establishment of Christianity. And this without interfering with the rights of conscience of any man. The question may now be, whether a great moral revolution shall take place in the Commonwealth. If this article is struck out, what a shock will it give to the moral sentiments and feelings of thousands,—the pious, the moral part of the community, who feel that we have no right to deprive them of what was designed for the good of posterity as well as our own. I stand as in the presence of our ancestors; they conjure us not to destroy what they planted with so much care, and under the influence of which we have so long flourished; but to transmit to posterity what is only a trust-estate in us. I stand as in the presence of posterity, calling upon us not rashly to abolish what was intended for their good—their entailed estate, their precious inheritance. Let us not in one hour destroy the venerable work of two centuries! Above all, on this day, the anniversary of the landing of the Pilgrims—when two centuries have rolled away, and we by means of their principles and their institutions have grown up and become a great nation—let us not reject the great principles of our prosperity—let us not overthrow all that was dear to them. This will be a poor tribute to their memory, a poor expression of our gratitude. No—let us bring a better offering—let us cherish those principles and institutions, and transmit them to our children and to children’s children to the latest posterity. This will be the most durable monument to the memory—the best memorial of the character of our forefathers… .

3 The “Poll Parish” ^*

After the Childs substitute failed a second time, in convention, and the select committee’s revision of the third article passed to a second reading on January 7, 1821, delegates sought alternate and more modest means of liberalization. Samuel P. P. Fay of Cambridge proposed to extend to Congregationalists and Unitarians the privileges of choosing the ministers to whom their tax money should be paid. As matters then stood a “poll parish,” that is, a parish of the Congregational denomination but organized apart from the town or “territorial parish,” required a special act of legislation. Fay’s resolution, by placing Congregationalists and Unitarians on the same footing as other denominations, struck at the parish system and the historic inviolability of ministerial contracts. It was vigorously opposed. The speeches of Samuel Hoar and Levi Lincoln in committee of the whole exhibit the two sides of this question.

MR. HOAR was sorry that any gentleman had thought it necessary to bring this proposition before the Convention at this late period. It had been twice substantially before the House, and had been negatived when there were more than a hundred more members present than were now here. But as it had been thought fit to bring up the question, it was necessary to consider what would be its operation. It was a short and plain proposition, and at first view seemed very fair, but it would be found on examination that its effect would be to annul every parish in the Commonwealth. It puts an end to all acts of the Legislature, dividing the Commonwealth into convenient districts for the support of public worship. For what reason was this to be done? It was desirable to some persons to have the power of leaving their parish minister and going to another. This, no doubt, was sometimes a very convenient and pleasant thing, but there were two sides to the question. A parish forms a contract with a minister—an individual votes in making the contract, but the next year changes his mind, and wishes to be liberated. He is only to say he has changed his mind and he is liberated. Would this be borne in any other case? Suppose there was a banking institution in which the individual proprietors were responsible for its engagements, and an individual should withdraw from it and avoid his responsibility? It would be considered a breach of good faith. This provision authorizes every member of a parish, which has a contract with a minister, to go where he pleases, and no tax can afterwards be assessed upon him for fulfilling the contract—this gives a new inducement to another to go—and the corporation may be left without corporators. The minister may sue and get execution against the corporation, but he can get no fruit of his execution—and there is no way in which his contract can be enforced. If all do not leave the parish—suppose only one half leave, those who remain will be compelled to pay a double tax, or to violate their contract. It was said that this might be the effect of the present law. This did not diminish the force of the objection. The law may be modified so as to prevent these consequences, but if the principle is incorporated into the constitution, it cannot be. It was said that these evil consequences had not resulted from the law. One reason why the consequences of the law had not been felt was, that it was not generally understood. It was generally supposed that to entitle one to leave a parish and withdraw his taxes, he must become a member of a society of a different denomination. But the law had recently received a different construction, which was no doubt correct. It was true that under the law a person who becomes of a different denomination, has a right to withdraw, but this was understood, and the contracts have been made subject to this condition. This provision might be liable to abuses and frauds, but it did not follow that there might not be benefit in the restriction. There were instances in which pretended changes of opinion to avoid taxation, had not availed. He stated an instance of a man who left a Congregational parish, joined a Baptist society and was immersed—and who, on being asked if he had washed away his sins, replied that he had washed away his taxes, which was his principal concern. This declaration being proved, he was still holden to the payment of his taxes in the Congregational parish in which he resided. The resolution, if adopted, would change the condition of all ministerial contracts. Whether it would annul contracts made by bond, he did [not] know, but there might be doubts. It disables a parish from forming a contract which shall be binding upon both parties. Suppose a minister is settled in the usual solemn form to-day, this amendment points out the mode in which any member of the parish may avoid the obligation entered into. It may be all fair in relation to future contracts, but it is not in relation to those now existing. He asked if gentlemen were prepared to adopt such a principle in the constitution. It was of infinite importance, and threatened the most pernicious consequences. There was no adequate reason for the change in the trifling inconvenience that had been felt… .

… MR. LINCOLN said that originally every parish was of one sect and entertained a uniformity of sentiment. But now there was a great difference of sentiment in almost every town. In some towns there are persons who are obliged to play the hypocrite and associate with a society they do not agree with, or contribute to the support of doctrines they do not believe. What was the condition of almost every parish in the western part of the Commonwealth? Every person was born with the obligation of supporting religious instruction of a certain kind, for the dissemination of doctrines which many did not believe. He had the happiness to belong to an Unitarian society, where he could worship in a manner consistent with his views of the doctrines of Christianity. But what would be the condition of a man belonging to such a society, who, by what he conceives to be the operation of irresistible grace, is brought to believe in the trinity, and all the doctrines connected with it, and that his former opinions were erroneous? Shall he be bound to adhere to his society, or to contribute to the support of a teacher who according to his new views preaches what is without a particle of religion in it, and inculcates doctrines abhorrent to his conscience? It is only an act of justice to permit him to withdraw. As to its violating the obligation of contracts between the parish and the minister, it is done by the provision of the constitution already, and there is no mode of preventing it. If all are required to pay for the support of public worship in some society, it is all that can be done towards gaining the purposes of government. The differences between persons of the same denomination are many of them more essential than those which distinguish the different denominations. The latter are principally matter of form—the other may be a difference in fundamental doctrines. The learned gentleman proceeded to state the practice that was begun as early as 1807 by the Legislature, of incorporating poll parishes, and the operation and effect of the practice which he contended had been favorable in promoting attendance on public worship and the growth of piety and religion… .

4 Tax Exemption ^*

Simple fact—the ineradicable split in the orthodox church—recommended the Fay resolution, and it passed. The delegates then took up the resolution of the Reverend Thomas Baldwin to exempt members of dissenting sects from the payment of taxes, thus raising the statute of 1811 to constitutional status. A similar resolution had been earlier rejected after lengthy debate. It represented the final effort of the dissenters to obtain a “second best” settlement. Samuel P. P. Fay was not a religious liberal. He voted against the Childs resolution, and his own was intended to help the Congregationalists. Baldwin, on the other hand, for several decades the minister of Boston’s Second Baptist Church, spoke for the dissenting interest. Several delegates addressed themselves to different aspects of the question, and the debate was concluded by a leading conservative and a leading liberal, Joseph Story and Levi Lincoln, who agreed on opposing the motion, though they had divided on the Childs resolution. The motion failed.

MR. BALDWIN said that some amendments to the third article of the declaration of rights, had been agreed upon by the Convention, but the most obnoxious part, perhaps, remained unrepealed. The most potent objection which had been urged against incorporating this resolution into the constitution, was, that the provision was liable to abuses. Particular instances had been mentioned, which, upon examination of the facts, would be found to have been misrepresented. He was sorry that such representations should be given, because they prejudice the minds of gentlemen, unjustly, against the merits of the resolution. The principle of the resolution was contained in the fourth resolution of the select committee on the declaration of rights. The whole thing claimed was, that the money of the members of a society of any denomination, should not be paid, so as to oblige them to draw it out of other hands. It was as contrary to the tenets of the Baptists, to levy compulsory taxes, as it was to those of the Friends to do military duty. The gentleman from Littleton had said, that seventy societies applied to the Legislature some years since, to be incorporated, only one of which was a Congregational society. The gentleman mistook the object of these applications. It was to get rid of paying taxes to other societies; not to obtain authority to tax their own members. He pitied that clergyman who depended on the compulsory taxation of his society to ensure him a subsistence. The exemption in this resolution lasted only so long as the person continued a member of the religious society to which he united himself.

MR. WILDE of Newburyport… . What was the amount of this resolution? that any man may join any society, and on producing his certificate of having joined it, may be exempted from taxation for the support of public worship in every other society. Any man may join any society, or any number of men may form a society, by which any man may be exempted from all taxation for the support of public worship in the town where he resides. The consequence will be that all who want to get rid of paying taxes will join a society. It is not necessary to support public worship—there is no need of a public teacher—the society may be in this town or in any other. A religious exemption society will be formed—exempt not only from taxation, but from all religious duties. A society may consist of one hundred thousand persons from all parts of the Commonwealth, and all the members residing in their respective towns. If this was not totally expunging the third article, it was worse; because by putting this resolution into the constitution, the Legislature would be deprived of the power to correct such abuses… .

MR. SIBLEY of Sutton hoped the resolution would prevail. As experience was the best master, he would mention that it was twenty-five years since they had had any parish tax for the support of public worship. While taxes were assessed, the society continually diminished till it had almost come to nothing; but they adopted the method of taxing pews, and now the society flourished. No person was compelled to attend public worship or contribute to its support, but every person who had any claims to respectability contributed voluntarily. He did not like to hear so much said about the superior goodness of the seaports compared with the country towns. He was a Congregationalist, but he was in favor of the present resolution.

MR. DUTTON… . This was the fourth attempt that had been made to do away the force and effect of the great principle in the bill of rights. This principle, a large majority had determined to maintain; and they were now called upon, again, to surrender it in the spirit of conciliation. Many moving appeals had been made to the candor and liberality of the majority; but he would ask gentlemen to consider what was the true meaning of this language. In his apprehension it was nothing short of this—give us all we ask and we shall be satisfied—yield the principle which you have sustained in every form, and which you deem vital to the best welfare of the State, and we shall be content; surrender, at this last trial, all that you have resolved to hold, and we shall give up the contest. Let it be remembered that the majority have acted on the defensive; that they have been compelled to defend their principles, assailed as they have been in every form that ingenuity could suggest, and with a perseverance which he should think praiseworthy if he thought the object so. But upon this subject it was in vain to attempt to disguise or conceal the truth. There was an irreconcilable difference of opinion; and whenever the reverend gentleman and his friends were satisfied, he was sure he should not be. The conciliation so much recommended, demanded everything and gave nothing; and before he could become a party to it, he must know upon what terms it was to be had. The gentleman who introduced these resolutions has frankly avowed his opinion that religion ought not to be supported except by voluntary contribution; the majority have determined, after a long and repeated discussion, that it is not only the unquestioned right of the State, but its solemn duty to compel men by law to maintain the public worship of God in all cases where it is not done voluntarily. Upon this subject there can be no compromise, no conciliation. The reverend gentleman had urged, that because a man was obliged to pay his taxes where he lived, though he might carry them where he attended public worship, it made one denomination of Christians subordinate to another. If this was ever true, the resolution passed this morning placed Congregationalists on the same footing; but in truth it never came within the meaning of the clause referred to in the constitution. The amendment which has passed recognizes the existence of unincorporated societies. He had voted for this, but he could go no farther. They now stood on the same ground with incorporated societies, were subject to the same duties, and equally under the control of the Legislature. But these resolutions now propose to engraft into the constitution the second section of the law of 1811. He was wholly opposed to this, not because he was opposed to the law, but because he was opposed to making it a part of the constitution. The whole difference, in his opinion, lay between having these provisions in a law, and having them in a constitution. So long as they remained a law, they were subject to revision and modification… .

MR. STORY opposed the proposition… . The Convention had determined by a large majority that it was fit and proper that the Legislature should be invested with authority to require that towns, parishes and religious societies shall make provision for the institution of the public worship of God, and the support of religious teachers in all cases where it is not done voluntarily—they had placed the rights and duties of unincorporated societies on the same footing with those that are incorporated—they had extended the right of withdrawing from a territorial parish so as to permit a person to go from one society to another of the same denomination and pay his taxes there. In adopting these indulgences they had given the greatest latitude consistent with the preservation of the general principle. So far he was not only willing, but anxious to go. But they must stop somewhere. The proposition now offered, if adopted in the constitution, would really and vitally destroy the main principle which had been established. They would establish the principle in form, but would provide the means by which its object might be completely and silently done away. They had made already such provision that the right of equality of denominations could not be sacrificed, but if they engrafted this proposition into the constitution, it would take away the power of the Legislature to compel the support of public worship in any part of the Commonwealth. Its tendency would be by taking the subject out of the sphere of legislation, to put it out of the reach of law. He had no objection to its remaining as a law, and there was no probability that it would be repealed unless it was abused. If it was in the constitution, the Legislature, the courts and juries would be bound by their oaths to sanction even the abuses that might be committed under it. Should it be repealed, the great principles of it are already adopted in the amendments agreed to—that unincorporated societies shall be put on the footing of those that are incorporated, and that every person shall be free to go to what society he pleases, and have his taxes paid to the support of religious instruction there.

MR. LINCOLN of Worcester said that what the ultra liberals and the ultra royalists in religion had acquiesced in, seemed to be a point at which we ought to stop. If this proposition were made originally, before any other propositions had been accepted, it would have been entitled to a more favorable hearing; but the Convention had adopted a principle that was repugnant to it. He had forewarned certain gentlemen that they were yielding more than they intended; but they acted for themselves, and he acted consistently in holding them to their concessions. The Congregationalists were not contending for superior privileges, but while they were willing on the one hand to extend to other denominations an equality of rights and immunities, they were not willing on the other to be bound in fetters, as they would be by this resolution. For what was the third resolution of the committee on the declaration of rights which had been adopted by the Convention? That resolution makes it imperative on the Legislature to compel Congregational societies to support public worship. While by this the gentlemen compel Congregationalists to support public worship, why should they call upon Congregationalists to free them from any compulsion? If the third resolution was a part of their proceedings which it was too late to alter, it was improper to call upon Congregationalists alone to support public teachers. All he contended for was equal rights. He stood there as a Congregationalist to resist being put under subordination. But if the proposition of the gentleman from Boston [Rev. Baldwin] should be adopted, there would be subordination. And of whom? Of the Congregationalists; if you compel them to pay for the support of religion and exonerate every other denomination of Christians. Let the gentleman from Boston, he said, consider that by the third resolution it is provided that every society, incorporated or unincorporated, shall support public worship. And what was the resolution, passed in the morning? That every citizen shall appropriate his contributions to whatever society he pleases. He asked if by these provisions all classes of Christians were not on the same footing. If then you provide that a Congregationalist shall support religion and compel him to support a teacher of his denomination, it was altogether unequal to pass this resolution for giving an exemption to others. In this way, he contended, gentlemen did make a subordination. He was willing to go as far in liberality as any man, but there was a point, where he must pause; and instead of putting all other denominations in subordination to Congregationalists, he could not consent to put Congregationalists in subordination to every other denomination… .

5 The Suffrage ^*

The principal debate on the suffrage came on December 11 on a motion to reconsider the vote in committee of the whole to abolish all pecuniary qualification for the franchise. The issue is developed in the brief speeches of the Reverend Edmund Foster of Littleton and Warren Dutton, George Blake, Josiah Quincy, and James T. Austin—all of Boston. Some reformers assailed the existing suffrage requirement as “aristocratical,” but neither reformers nor conservatives put much stock in this objection and approached the question largely as one of expediency. Even Quincy, who was remembered as a Federalist champion in the Jeffersonian years and who was now embarking on a career in state politics, based his defense of the qualification on prospective rather than present dangers. The motion to reconsider passed on December 12 on the casting vote of the president. Blake, who had the responsibility of steering the revision of the third article through the convention, now backed away from the universal suffrage he had earlier advocated and proposed a taxpaying qualification. It was promptly approved and became one of the fourteen recommended amendments.

The resolution offered by Mr. Keyes, on Saturday, and referred to this committee, proposing to abolish all pecuniary qualification in electors of officers under this government, was taken up by the committee.

MR. NICHOLS of South Reading moved that the committee should rise. Negatived.

MR. PARKER of Charlestown moved to pass over the resolution, on account of the absence of the mover. Negatived.

The question was then taken on the resolution, and decided in the affirmative, 185 to 157.

MR. ALVORD of Greenfield moved a reconsideration of the last vote.

MR. FOSTER of Littleton said he was not present when the vote was taken, but he should have voted in the affirmative. He would not question the right to require such a qualification, but he had been for several years convinced that it was inexpedient and mischievous. Either a greater amount of property should be required, or none at all. Great difficulties were occasioned by this requisition at every election, and continual questions asked of this sort—what property have you? have you the tools of any trade? Yes. What else? A pair of steers my father gave me. And if this was not enough, then, he said, a note, which is never intended to be paid, makes up the balance. Men in this Commonwealth become freemen when they arrive at twenty-one years of age; and why oblige them to buy their freedom? They perform militia duty—they pay a tax for all they possess, that is, their polls. Nothing, he said, of so little consequence in itself, was so ardently desired, as an alteration in this part of the constitution. Men who have no property are put in the situation of the slaves of Virginia; they ought to be saved from the degrading feelings.

MR. BOND of Boston said the reverend gentleman was mistaken on one point. The resolution did not confine the right of voting to those who paid a poll tax; but paupers also were embraced by it.

MR. FOSTER said he did not mean to allow them the privilege of voting.

MR. DUTTON said he was in favor of reconsideration. He had voted against the resolution, which, it is now understood by those who supported it, ought to be modified so as to exclude paupers. Although the resolution as it passed, was without limitation, still he was willing to consider it, as modified in the manner suggested. It introduced a new principle into the constitution. It was universal suffrage. There were two ways of considering it. 1st. As a matter of right. 2d. As a matter of expediency. As to the right, he inquired why paupers were excluded at all, if it was a common right; and if it was not, then there was the same right in the community to exclude every man, who was not worth two hundred dollars, as there was to exclude paupers, or persons under twenty-one years. In truth there was no question of right; it was wholly a question of expediency. He thought it expedient to retain the qualification in the constitution. It was in the nature of a privilege, and as such, it was connected with many virtues, which conduced to the good order of society. It was a distinction to be sought for; it was the reward of good conduct. It encouraged industry, economy and prudence; it elevated the standard of all our civil institutions, and gave dignity and importance to those who chose, and those who were chosen. It acted as a stimulus to exertion to acquire what it was a distinction to possess. He maintained that in this country, where the means of subsistence were so abundant, and the demand for labor so great, every man of sound body could acquire the necessary qualification. If he failed to do this, it must be, ordinarily, because he was indolent or vicious. In many of the states a qualification of freehold was required. He thought that a wise provision; and if any alteration was to be made, he should be in favor of placing it there, rather than upon personal property. As it was, he thought it valuable as a moral means, as part of that moral force so essential to the support of any free government. He would not diminish that, for in the same proportion it should be, from any cause diminished, would the foundations of the republic be weakened. He also considered it as unreasonable, that a man who had no property should act indirectly upon the property of others. If gentlemen would look to the statute book, to the business of the Legislature, or to the courts of law, how much of all that was done, would be found to relate to the rights of property. It lay at the foundation of the social state, it was the spring of all action and all employment. It was therefore, he apprehended, wholly inequitable in its nature, that men without a dollar should, in any way, determine the rights of property, or have any concern in its appropriation. He also contended, that the principle of the resolution was anti-republican. It greatly increased the number of voters, and those of a character most liable to be improperly influenced or corrupted. It enlarged the field of action to every popular favorite, and enabled him to combine greater numbers. The time might come, when he would be able to command, as truly as ever a general commanded an army, sufficient numbers to affect or control the government itself. In that case, the form of a republican constitution might remain, but its life and spirit would have fled. The government would be essentially a democracy, and between that and a despotism there would be but one step. Such would be the tendency of the principle, and so far as it operated, it would change the structure of the constitution. The qualification which is required, was intended as a security for property. He considered it as a barrier, which ought not to be removed, and could not be, without danger to the State… .

… MR. BLAKE was in favor of reconsideration, because he thought the subject had not been fairly examined. He was not satisfied that the right of universal suffrage ought to be exercised, but many weighty reasons could be urged in favor of it, some of which he would state. He did not consider it as changing a fundamental principle of the constitution, if he did, he should oppose it. He said that the constitutions of most of the states in the Union required no pecuniary qualification; those of South Carolina and Virginia, which require a freehold, were exceptions, and he did not mean to speak of the states newly admitted. The example of other states, however, was not of much weight, as we ought to be an example to ourselves. Life was as dear to a poor man as to a rich man; so was liberty. Every subject therefore, involving only life or liberty, could be acted upon, with as good authority, by the poor as by the rich. As to property, the case was different. But our constitution involves all three, and the question is, how the power in relation to them shall be parcelled out. Our constitution has made the senate the guardian of property. The senate is the rich man’s citadel. There, and there alone, the rich man should look for his security. Every man who pays his tax—and he did not know why not paupers, as they were liable to military duty, ought to possess the privilege of voting. To deprive a man of this privilege till he acquires property, was an encroachment on the fundamental principles of our constitution. The constitutions of most of the other states give the right of voting to every man who pays his taxes; not mentioning anything about paupers. He said the requisition of property was in this town, for a long time, a dead letter, until the Legislature, a few years since, made some wise provisions concerning elections… .

… MR. QUINCY said, that the proposition before the committee had been considered by those in favor, as well as those against it, as one for universal suffrage; but that it was not such a proposition. Universal suffrage is suffrage without qualification. Suppose the proposition adopted—still you have not universal suffrage. The qualification of age, and of sex, remains. Women are excluded—minors are excluded. The real nature of the proposition is the exclusion of pecuniary qualification. This remark is material, because the only principle alleged in favor of the exclusion of pecuniary qualification is just as strong in favor of the exclusion of every other qualification. Other gentlemen had alleged reasons in favor of the proposition from considerations of inconvenience and of expediency. But the only gentleman who had alleged in its favor a principle, as the foundation of a right, was his colleague (Mr. Blake). His principle was this. “Life is precious. Liberty is precious. Both more precious than property. Every man, whose life and liberty is made liable to the laws, ought therefore to have a voice, in the choice of his legislators.” Grant this argument to be just. Is it not equally applicable to women and to minors? Are they not liable to the laws? Ought they not then to have a voice in the choice? The denial of this right to them shows, that the principle is not just. Society may make a part of its members obnoxious to laws, and yet deny them the right of suffrage, without any injustice.

Again—it has been said that pecuniary qualification was contrary to the spirit of our constitution. Those who took this ground had not favored the Convention with their definition of the spirit of our constitution, though it was very plain from the course of their arguments that what they understood by it, was a spirit of universal or unlimited liberty. Now, this is not the spirit of our constitution; which is a spirit of limited liberty; of reciprocal control. Reduced to the form of a definition, this is the meaning of the term, spirit of our constitution—The will of the people, expressed through an organization by balanced power. Every man, therefore, who would compare any given provision, with the spirit of our constitution, ought not to recur to principles of abstract liberty, but to principles of balanced liberty. With respect to those checks and balances, which according to the form of our constitution, constitute the character of Massachusetts liberty, those gentlemen take a very narrow view of the subject who deem that they exist only in the separation of the powers of government into the legislative, judicial and executive; or in the division of the legislative power among three branches. Every limitation of the exercise of any right or power, under the constitution, makes a part of that balance, which will be disturbed by its removal. The provision of a pecuniary qualification is of this nature. It is one of the checks in our constitution. How it operates, whom it affects, whom it benefits, are worthy of consideration. In the course of the argument in the Convention, it has been considered as a check, in favor of the rich, and against the poor. Now the fact is, that it is directly the reverse. If we should suppose the rich, acting as a class, this is the first provision, which they ought to expunge. And on the other hand, it is the last, with which the poor ought to consent to part. In its true character, this provision is in favor of the poor, and against the pauper;—that is to say, in favor of those who have something, but very little; against those who have nothing at all. Suppose all qualifications of property taken away, who gains by it? The poor man, who has just property enough to be qualified to vote? Or the rich, whose property is a great surplus? The rich man’s individual vote is, indeed, countervailed by it, as well as the poor man’s. But the great difference is this, that the poor man has thus lost his political all; he has no power of indemnifying himself. Whereas the rich, by the influence resulting from his property over the class of paupers, has a power of indemnifying himself a hundred fold. The theory of our constitution is, that extreme poverty—that is, pauperism—is inconsistent with independence. It therefore assumes a qualification of a very low amount, which, according to its theory, is the lowest consistent with independence. Undoubtedly it excludes some, of a different character of mind. But this number is very few; and from the small amount of property required, is, in individual cases, soon compensated.

At the present day, the provision was probably worth very little. In the present results of our elections, it would not make one hair white or black. But prospectively, it was of great consequence. In this point of view he put it to the consideration of the landholders, and yeomanry of the country. The principle was peculiarly important to them. Everything indicates that the destinies of the country will eventuate in the establishment of a great manufacturing interest in the Commonwealth. There is nothing in the condition of our country, to prevent manufacturers from being absolutely dependent upon their employers, here as they are everywhere else. The whole body of every manufacturing establishment, therefore, are dead votes, counted by the head, by their employer. Let the gentlemen from the country consider, how it may affect their rights, liberties and properties, if in every county of the Commonwealth there should arise, as in time there probably will, one, two, or three manufacturing establishments, each sending, as the case may be, from one to eight hundred votes to the polls depending on the will of one employer, one great capitalist. In such a case would they deem such a provision as this of no consequence? At present it is of little importance. Prospectively of very great. As to the inconvenience resulting from the present provision, this was amply balanced by its effect as a moral means, and as an incentive to industry… .

… MR. AUSTIN of Boston said that gentlemen, who were unwilling to change the principles of the constitution, instead of striking out this qualification ought to increase the sum, on account of the change in the value of money; he thought, however, that it would be impossible for them to effect this, and experience had shown the impolicy of requiring the present qualification. He would not contend against the right of requiring it, though there were strong arguments on that side, but he considered it inexpedient. The provision could not be carried into effect; it was the cause of perjury and immorality—it did not prevent a fraudulent man from voting, who owed more than he was worth, but debarred an honest poor man who paid his debts—and it tended to throw suspicion of unfairness on the municipal authority. He asked, what will you do with your laboring men? They have no freehold—no property to the amount of two hundred dollars, but they support their families reputably with their daily earnings. What will you do with your sailors? Men who labor hard, and scatter with inconsiderateness the product of their toil, and who depend on the earnings of the next voyage. What will you do with your young men, who have spent all their money in acquiring an education? Must they buy their right to vote? Must they depend on their friends or parents to purchase it for them? Must they wait till they have turned their intelligence into stock? Shall all these classes of citizens be deprived of the rights of freemen for want of property? Regard for country, he said, did not depend upon property, but upon institutions, laws, habits and associations. This qualification was said to encourage industry;—it was better to depend on the principle of character and independence which a man feels in exercising the privilege of a freeman. If taking away this qualification would weaken the moral force in the community, as had been urged, he should be for retaining it; but that force depends on education, and the diffusion of intelligence. One gentleman (Mr. Quincy) had looked forward to our becoming a great manufacturing people. God forbid. If it should happen, however, it was not to be expected, that this modicum of property required would exclude the laborers in manufactories from voting. It was better to let them vote—they would otherwise become the Lazaroni of the country. By refusing this right to them, you array them against the laws; but give them the rights of citizens—mix them with the good part of society, and you disarm them… .

6. The Basis of Representation ^*

After disposing of the suffrage question, the committee of the whole proceeded to take up Henry Dearborn’s resolution to change the basis of representation in the senate from property to persons. Dearborn spoke at length, but the Journal preserves only a brief abstract of his speech. The resolution passed. The convention voted to reconsider, and Dearborn explained his plan for a democratically based representation encompassing both chambers of the legislature. Levi Lincoln then introduced his plan, which he expounded on the floor the next day, December 13. Dearborn and Lincoln, the foremost democratic leaders in the convention, were both sons of Massachusetts Jeffersonians who had served in Jefferson’s cabinet. Dearborn, who represented Roxbury in Norfolk County, succeeded his father as Collector of the Port of Boston in 1812 and remained in that post until 1829. Lincoln, from Worcester, was a lawyer and, at intervals, an influential member of the legislature. He was later governor of the state for a solid decade, from 1825 to 1834. The speeches of Saltonstall and John Adams—his longest in the convention—briefly state the views of the two conservatives.

MR. DEARBORN… . He did not know whence the principle, by which the senate is apportioned by the present constitution, was derived. It was not to be found in the organization of any of the republics, ancient or modern. It did not exist in Greece, Rome, Venice or Genoa. It was found in the British House of Lords. The members of that house support the rights of the aristocracy, and are their own representatives. In the United States there is but one class of people. They are all freemen and have equal rights. The principle of a representation of property in our constitution was not derived from the neighboring states. New Hampshire was the only state whose constitution contained a similar provision. If the principle was a good one, it was remarkable that it had not been adopted in any other state. The only reason he had ever heard of to justify the principle was, that the taxes are paid in proportion to property, and that the principle of apportionment was designed for the protection of property. But this protection was not necessary. Property secures respect whenever it is not abused, and the influence of those who possess it is sufficient for its protection. He apprehended nothing at present from the representation of wealth. But the time might come when the accumulation of property within twenty miles of the capital would be sufficient to control the senate. At present the county of Berkshire, of about equal population with Suffolk, would have but a third part of the representation, and the man of large property in the former county would have but a third part of the influence through the senate which was enjoyed by a man of the same property in the latter county. This was not just, equitable nor proper. He appealed to the magnanimity of the rich to yield to the poor their equal proportion of rights. The principle might be adopted now, but the people would be dissatisfied with it, they would constantly protest against it, and it would be at some time or other necessarily yielded to their importunity… .

… MR. LINCOLN… . The question now under consideration was on what principle should the representation in the senate be founded? He agreed in the sentiment that a free government must be founded on a system of checks and balances—and it was on this principle that he supported the resolution offered by the gentleman from Roxbury. But he did not admit that to obtain this check it was necessary to assume the principle of a representation of property in either branch. It was attained by adopting a different mode of representation for the two branches as well as a different principle. The object of a check was equally attained by adopting different qualifications for electors, or different periods of election. If it was shown by argument, by experience, or by arithmetical calculation that any principle was unequal, that ought to be abandoned, and another adopted not susceptible of the objection. He should proceed to show the inequality and unjust operation of the old principle, and then endeavor to show that the effect contemplated from checks may be secured by another principle not liable to these objections. If it should be shown that representation according to valuation was not just, and that the object could be attained by letting the whole people vote for one branch, and freeholders only for the other—by choosing one for two years and the other for one, or in any other mode which is not unequal—this principle should be abandoned. He admitted that if senators were to be chosen from certain districts, and representatives from the same, and for the same period, according to the plan of the gentleman from Roxbury, there would be no check. But it was not so with the plan which he had proposed. He had proposed that the representatives in the other branch should be chosen by towns—and the system would then be analogous to that of the Congress of the United States, reversing the terms only, one representing the corporations of towns and the other the population. Was the principle of representation in the senate equal and just? Our government is one of the people, not a government of property. Representation is founded on the interests of the people. It is because they have rights that they have assumed the power of self government. Property is incompetent to sustain a free government. Intelligence alone can uphold any free government. In a government of free-men property is valuable only as the people are intelligent. Were it not for a government of the people, the people would be without property. But it is contended that this system is justified by another principle. Representation and taxation have been described as twin brothers. But this principle has not been fully understood. It does not follow that there shall be an unequal representation, that taxation may be represented. It is only necessary that all who are taxed should be represented, and not that they should be represented in proportion to their tax. Boston would be represented if it had but a single member. This was the principle which was contended for in the revolution, and that revolution would never have been effected if we had had a single representative in the British parliament. Secure the right of representation; but in the regulation of that right, you may restrict it to any proportion whatever. Whether you are represented by one or forty-five, it is utterly in vain to complain that you have no representation. But any other distribution of representation than according to population, is unequal and unjust. He alluded to the case mentioned yesterday by the gentleman from Roxbury of one senator for the county of Suffolk for every 7,500 inhabitants, while there was in the county of Berkshire but one for every 20,000, which he pronounced to be an instance of most gross and cruel inequality. He stated the case of an individual lately deceased whose property of 1,300,000 dollars alone, would have as much influence in the senate as 1300 independent farmers with a property of 1000 dollars each. This principle conferred upon a dangerous part of the community an undue and unwarrantable share in the representation. A man of 1,300,000 dollars property surrounded by 1299 others of no property, confers on them an influence equal to the same number of independent men worth 1000 each. He contended that if it was a sound principle that property should confer the right of representation, it ought not to be restricted, and Suffolk should have eight senators. Imposing the restriction was admitting that the principle was false and unjust. Taking population as the basis, no inequality would result. He protested against any misapprehension of his feelings and motives—he had no disposition to excite jealousies, nor to prevent the exercise of rights—if they were founded upon principle. He professed a great respect for the people of the metropolis—but he protested against their borrowing, through the respect entertained for the town, any influence that was not secured to every other part of the people… .

… MR. SALTONSTALL of Salem observed that this Convention exhibited a singular and most interesting scene. A free people by their delegates assembled to deliberate upon the constitution under which they have so long lived, inquiring into its operations, and whether there is any evil that requires amendment. It is a subject of gratitude that while the nations of the old world are obliged to submit to reforms, dictated by standing armies, we are witnessing this quiet scene. But there is also much cause of anxiety. A short time since we were all happy under the present constitution. There was no symptom of uneasiness, no project for a convention. Our government secured to us all the objects for which civil society was instituted. The separation of a part of the Commonwealth, rendered it expedient to propose to the people the question of a convention, and it was adopted by a very small vote,—a fact which shows conclusively that no evil was pressing on the people; that no grievance loudly demanded a remedy. But now, amidst constant professions of veneration for the instrument, every part of it is attacked, and we are called on to defend the elementary principles of government. First, we abolish one session of the Legislature, which has existed for two centuries; we then dispense with the necessity of a declaration which has existed from the beginning; we disown that the people ever enjoyed their rights in the election of counsellors. And now the foundation of a great branch of the government is attacked, as unjust and aristocratic. Is the constitution to be thrown by as an old-fashioned piece of furniture, that answered well enough in its day, but is now fit only to be stowed away in the lumber room with the portraits of our ancestors? Let us rather meet the objections, listen to the arguments, correct the evil, if one is shown to exist, and the constitution will come out of the fiery furnace unhurt, still more precious for the trial it has endured. Mr. S. then observed that he had not expected a serious attempt would be made to change the basis of the senate; that it had not been a cause of dissatisfaction; that nothing had been written or said against it until the separation of Maine; that there was occasionally some difficulty as to the fractions, and some irritation in the formation of districts, but no serious disaffection; and he believed no objection was ever made to it in the Legislature, as unjust or unequal. He had thought also that the constitution was endeared to the people from the circumstances under which it was made,—in the midst of war; our independence not yet secure; while our armies were yet in the field. At such a time the convention met, and deliberately discussed the great principles of government, and framed the present system of government. There were circumstances also calculated especially to endear this part of the constitution to us. When the convention assembled, a majority were opposed to two branches; they thought the people needed no check: like the gentleman from Worcester [Mr. Lincoln], they thought the people were capable of self-government. Its analogy to the old council had also a tendency to render it odious; it also savored a little of aristocracy, and the leaders of that day had been irritated under the influence of the old government; yet they listened to the sages who were with them, and adopted the principle. The present basis of the senate is perfectly defensible in theory. Some check on the popular branch is necessary; this is admitted by all. Mr. S. then referred to history,—the English parliament,—to the national assembly, &c., to show its necessity. There are times when popular ferments are excited, that would destroy everything fair and valuable in society, if unchecked. Mr. S. then remarked on the different systems proposed. That by Mr. Dearborn would be no check. Both branches will be chosen by the same people in the same districts. Both would be subject to the same influence; be under the same control; and the senate would have no more operation as a check, than the same men in the other branch. Another proposition is the novel, the fanciful, the fallacious one by the gentleman from Worcester, which would have the senate the popular branch, to be checked by the house! A popular branch of thirty-six to be checked by three hundred and fifty! But what is to check the house? That will be the popular branch, emanating from the people, warmed with all their passions. What are these corporate rights? There is nothing tangible in them, which can form a check. Mr. S. then went on to show that there was no analogy between this plan and the constitution of the United States, as had been argued by Mr. Lincoln. He thought the people would never adopt a system of cheeks, by making different tenures to office, or different qualifications to voters. What then remains but to preserve the present basis; to cling to that which has been so wise in theory, and so salutary in practice? It is an admirable provision,—the representation of a great interest, and yet not dangerous to any other. It is the result of a new modification which will give a spirit of independence to the senate, and make them indeed a check—not to thwart the other branch, but to watch, to cause deliberation. Property should be represented, because it is the greatest object of civil society; it is not mere inert matter, but a living principle, which keeps the great machine of society in motion. It is the universal stimulus. The principle of the senate is not unequal in its operation, but the same everywhere, in all places; not for Suffolk or Essex—Essex has nothing to gain, but may lose much, by this arrangement. It is not for the rich, but for the security of all men and all interests, as it will make an effectual check for the preservation of every right. If in theory this is wise, how much more valuable is it after forty years’ experience. Experiment is worth everything upon this subject. We should be unwilling to touch what is made venerable by age. We should cautiously advance any theory of our own, against a system that has been in operation half a century. The situation of Massachusetts is a proud one. She has braved the storm which has overwhelmed so many old governments. They that laughed us to scorn are now looking to us with admiration, and studying our systems… .

… MR. LINCOLN rose to explain. He thought it disengenuous in gentlemen, to allude to a proposition which he had made, without any connection with any other. This question should depend on its own merits, and the Convention may reject or adopt the proposition which he had presented. He did not contend that it was just and equal in itself, but in connection with the representation in the senate, on the basis of valuation, it would form an effectual, and the only effectual check.

MR. LOCKE proceeded to compare the three systems of representation which had been proposed, and to argue in favor of the adoption of that reported by the committee. He said he understood, that some gentlemen approved of the plan proposed by the gentleman from Roxbury, for the senate, and that they thought it fair to couple it with the house of representatives, proposed in the system of the select committee. To him it appeared manifestly unjust to take this part of the system, without at the same time adopting the part relating to the senate. He observed, that some went on the principle, that the senate was founded on the basis of property. This was not true. The basis was taxation. The wealthy districts were allowed a greater proportion of representation in the senate, not with a view to the protection of property, but because they were made to contribute so much to the support of the public burdens. He concluded by giving his testimony to the fairness and liberality of the members of the committee from the large towns, and their readiness to yield everything that could be demanded in the spirit of fair and equal compromise.

MR. ADAMS of Quincy. I rise, with fear and trembling, to say a few words on this question. It is now forty years since I have intermingled in debate in any public assembly. My memory and strength of utterance fail me, so that it is utterly impossible for me to discuss the subject on the broad ground, on which gentlemen, who have spoken before me, have considered it. The constitution declares, that all men are born free and equal. But how are they born free and equal? Has the child of a North American Indian, when born, the same right which his father has, to his father’s bow and arrows? No—no man pretends that all are born with equal property, but with equal rights to acquire property. The great object is to render property secure. Without the security of property, neither arts, nor manufactures, nor commerce, nor literature, nor science can exist. It is the foundation upon which civilization rests. There would be no security for life and liberty even, if property were not secure. Society is a compact with every individual, that each may enjoy his right for the common good. In the state of nature the Indian has no defence for his little hut, or his venison, or anything that he acquires, but his own strength. Society furnishes the strength of the whole community, for the protection of the property of each individual… .

… The report of the select committee is a compromise, a mutual concession of various parts. The large towns have made quite as great concessions as any part of the country. Suffolk is to have but six senators; in proportion to its property it would have more. The eloquent gentleman from Roxbury [Mr. Dearborn], has alluded, with propriety, to the ancient republics of Athens and Rome. My memory is too defective to go into details, but I appeal to his fresher reading, whether in Athens there were not infinitely greater advantages given to property, than among us. Aris-tides ruined the constitution of Solon, by destroying the balance between property and numbers, and, in consequence, a torrent of popular commotion broke in and desolated the republic. Let us come to Rome; property was infinitely more regarded than here, and it was only while the balance was maintained, that the liberties of the people were preserved. Let us look at the subject in another point of view. How many persons are there, even in this country, who have no property? Some think there are more without it, than with it. If so, and it were left to mere numbers, those who have no property would vote us out of our houses. In France, at the time of the revolution, those who were without property, were in the proportion of fifty to one. It was by destroying the balance, that the revolution was produced. The French revolution furnished an experiment, perfect and complete in all its stages and branches, of the utility and excellence of universal suffrage. The revolutionary government began with the higher orders of society, as they were called, viz., dukes and peers, archbishops and cardinals, the greatest proprietors of land in the whole kingdom. Unfortunately, the first order, although very patriotic and sincere, adopted an opinion that the sovereign power should be in one assembly. They were soon succeeded and supplanted—banished and guillotined, by a second order, and these in their turn by a third, and these by a fourth, till the government got into the hands of peasants and stage-players, and from them descended to jacobins, and from them to sans-culottes… . And thus it has happened in all ages and countries in the world, where such principles have been adopted, and a similar course pursued. All writers agree, that there are twenty persons in Great Britain, who have no property, to one that has. If the radicals should succeed in obtaining universal suffrage, they will overturn the whole kingdom, and turn those who have property out of their houses. The people in England, in favor of universal suffrage, are ruining themselves. Our ancestors have made a pecuniary qualification necessary for office, and necessary for electors; and all the wise men of the world have agreed in the same thing… .

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… .

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