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Popular Basis of Political Authority

CHAPTER 2|Document 9

Statement of the Berkshire County, Massachusetts, Representatives

To the Honorable Committee from the General Court of Massachusetts Bay now convened at Pittsfield-- Mr. Chairman, Sir

We whose Names are underwriten indulging some Apprehensions of the Importance of Civil and religious Liberty, the destructive Nature of Tyranny and lawless power, and the absolute necessity of legal Government, to prevent Anarchy and Confusion; have taken this method to indulge our own Feelings and Sentiments respecting the important matters that have for some Time been the Subject of debate in this present Meeting--Political Disquisitions, if managed with Decency, Moderation and Candor are a good preservative against Ignorance and Servility and such a state of perfect Quietude as would endanger the Rights of Mankind united in the Bands of Society. We wish to preserve this Character in what we have now to offer in the Defence of our Constituents in opposing, in times past, the executive Courts of Justice in this County.

We wish with the least Delay to come to the Merits of the cause, and shall now proceed to make those observations on the Nature of Government which are necessary to bring into view the Apprehensions we indulge respecting the present Condition of this state, whether we have a fundamental Constitution or not; and how far we have Government duly organized and how far not: In free States the people are to be considered as the fountain of power. And the social Tie as founded in Compact. The people at large are endowed with alienable and unalienable Rights. Those which are unalienable, are those which belong to Conscience respecting the worship of God and the practice of the Christian Religion, and that of being determined or governed by the Majority in the Institution or formation of Government. The alienable are those which may be delegated for the Common good, or those which are for the common good to be parted with. It is of the unalienable Rights, particularly that of being determined or governed by the Majority in the Institution or formation of Government of which something further is necessary to be considered at this Time. That the Majority should be governed by the Minority in the first Institution of Government is not only contrary to the common apprehensions of Mankind in general, but it contradicts the common Law of Justice and benevolence.

Mankind being in a state of nature equal, the larger Number (Caeteris paribus) is of more worth than the lesser, and the common happiness is to be preferred to that of Individuals. When Men form the social Compact, for the Majority to consent to be governed by the Minority is down right popery in politicks, as submission to him who claims Infallibility, and of being the only Judge of Right and rong, is popery in Religion. In all free Governments duly organized there is an essential Distinction to be observed between the fundamental Constitution, and Legislation. The fundamental Constitution is the Basis and ground work of Legislation, and asscertains the Rights Franchises, Immunities and Liberties of the people, Howr and how often officers Civil and military shall be elected by the people, and circumscribing and defining the powers of the Rulers, and so affoarding a sacred Barrier against Tyranny and Despotism. This in antient and corrupt Kingdoms when they have woke out of Slavery to some happy dawnings of Liberty, has been called a Bill of Rights, Magna Charta etc. which must be considered as imperfect Emblems of the Securities of the present grand period. Legislators stand on this foundation, and enact Laws agreeably to it. They cannot give Life to the Constitution: it is the approbation of the Majority of the people at large that gives Life and being to it. This is the foundation of Legislation that is agreeable to true Liberty, it is above the whole Legislature of a free state, it being the foundation upon which the Legislature stands. A Representative Body may form but cannot impose said Constitution upon a free people. The giving Existence to the fundamental Constitution of a free state is a Trust that cannot be delegated. For any rational person to give his vote for another person to aid and assist in forming said Constitution with a view of imposing it on the people without reserving to himself a Right of Inspection Approbation rejection or Amendment, imports, if not impiety, yet real popery in politicks. We could bring many Vouchers for this Doctrine sufficient for our present purpose is the following Extract from a Noted Writer. in answer to that assertion of another respectable writer that "The bare Idea of a State without a power some where vested to alter every part of its Laws is the height of political Absurdity." [Introduction to Blackstone's Commentaries, p. 97; note by the editor of Acts and Resolves] He remarks upon it, "A position, which I apprehend, ought to be, in some Measure limited and explained. For if it refers to those particular Regulations, which take place in Consequence of Immemorial Custom, or are enacted by positive Statue, and at the same Time, are subordinate to the fundamental Constitution from which the Legislature itself derives its Authority; it is admitted to be within the power or Trust vested in the Legislature to alter these, pro, Re nata, as the good of Society may require. But this power or Authority of the Legislature to make Alterations cannot be supposed to extend to the Infringement of those essentials Rights and previleges, which are reserved to the Members of a free state at large, as their undoubted Birthright and unalienable property. I say, in every free State there are some Liberties and previleges, which the Society has not given out of their own Hands to their Governors, not even to the Legislature: and to suppose the contrary would be the height of political absurdity; for it is saying that a state is free and not free at the same Time; or which is the same thing, that its Members are possessed of Liberties, of all which they may be divested at the will of the Legislature; that is, they enjoy them during pleasure, but can claim no property in them

In a word nothing is more certain than that Government in the general nature of it is a Trust in behalf of the people. And there cannot be a Maxim, in my opinion, more ill grounded, than that there must be an arbitrary power lodged somewhere in every Government. If this were true, the different kinds of Government in the world would be more alike, and on a level, than they are generally supposed to be. In our own Government in particular, tho' no one thinks with more respect of the powers which the Constitution hath vested in every branch of the Legislature; yet I must be excused in saying what is strictly true, that the whole Legislature is so far from having an absolute power, that it hath not power in several Cases that might be mentioned. For instance, their Authority does not extend to making the house of Commons perpetual, or giving that house a power to fill up their own vacancies: the house of Commons being the representatives of all the Commons of England and in that Capassity only a branch of the Legislature; and if they concur in destroying the foundation on which they themselves stand; and if they annihilate the Rights of their Constituents and claim a share in the Legislature upon any other footing than that upon which the Constitution hath given it to them; they subvert the very Trust under which alone they act, and thereby forfeit all their Authority. In short they cannot dispence with any of those essential Rights of the people which it ought to be the great object of Government as it is of our Constitution in particular to preserve."--

These reasonings tend abundantly to evince, that the whole Legislature of any state is insufficient to give Life to the fundamental Constitution of such state, it being the foundation on which they themselves stand and from which alone the Legislature derives its Authority--

May it be considered, further, that to suppose the Representative Body capable of forming and imposing this Compact or Constitution without the Inspection and Approbation Rejection or Amendment of the people at large would involve in it the greatest Absurdity. This would make them greater than the people who send them, this supposes them their own Creators, formers of the foundation upon which they themselve stand. This imports uncontroulable Dominion over their Constituents for what should hinder them from making such a Constitution as invests them and their successors in office with unlimited Authority, if it be admitted that the Representatives are the people as to forming and imposing the fundamental Constitution of the state upon them without their Approbation and perhaps in opposition to their united sense--In this the very essence of true Liberty consists, viz in every free state the Constitution is adopted by the Majority.

It is needful to be observed that we are not to Judge of true Liberty by other Nations of the Earth, darkness has overspread the Earth, Tyranny Triumps thro' the world. The Day light of Liberty, only begins to dawn upon these Ends of the Earth. To measure the freedom, the Rights and previleges of the American Empire by those enjoyed by other Nations would be folly.

It is now both easy and natural to apply these reasonings to the present State of Massachusetts Bay. We think it undeniably follows from the preceeding Reasonings that the Compact in this state is not yet formed: when did the Majority of the people at large assent to such Constitution, and what is it? if the Majority of the people of this state have adopted any such fundamental Constitution it is unknown to us and we shall submit to it as we always mean to be governed by the Majority--

Nor will any of those consequences follow on this supposition, that we have no Law, or that the Honorable Council and House of Representatives are Usurpers and Tyrants. Far from it. We consider our case as very Extraordinary. We do not consider this state in all Respects as in a state of Nature tho' destitute of such fundamental Constitution. When the powers of Government were totally dissolved in this state, we esteemed the State Congress as a necessary and useful body of Men suited to our Exigencies and sufficiently authorized to levy Taxes, raise an Army and do what was necessary for our common defence and it is Sir in this Light that we view our present Honorable Court and for these and other reasons have inculcated a careful Adherence to their orders. Time will not permit to argue this Matter any longer, for your Honors patience must have been tryed already. These have been some of the reasons we have indulged, and Sentiments we have cultivated respecting Constitution, and for these Reasons we have been looking forward towards a new Constitution--But we must further add

That a fear of being finally deprived of a Constitution and of being thrown into confusion and divisions by delaying the formation of a new Constitution, has caused our Constituents so early and invariably to oppose the executive Courts--We have feared, we now realize those fears, that upon our submission we shall sink down into a dead Calm and never transmit to posterity a single Right nor leave them the least Knowledge of so fair an Inheritance, as we may now convey to them.--

The Founders' Constitution
Volume 1, Chapter 2, Document 9
http://press-pubs.uchicago.edu/founders/documents/v1ch2s9.html
The University of Chicago Press

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

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