CHAPTER 15|Document 26
Return of Northampton, Massachusetts22 May 1780Handlin 577--85
Also we greatly disapprove of the fourth article of the third section of the first chapter, intitled house of Representatives, as materially defective, and as rescinding the natural, essential, and unalienable rights of many persons, inhabitants of this Commonwealth, to vote in the choice of a Representative or Representatives, for the town in which they are or may be inhabitants; and we beg leave to propose that the following addition should be made to the said fourth article, to wit, and also every rateable poll being twenty one years of age, and who shall have been resident in this Commonwealth for the space of three years next preceeding, and who shall be willing to take such oath of allegiance to the Commonwealth as the Laws for the time being shall prescribe.
In order to make the first article of this chapter, expressly conformable to your elegant address to your countrymen, and also to make it consistent with the principle of personal equality (which we conceive ought to be attended to, as well as the principle of corporation equality) it ought to run thus, viz. There shall be in the legislature of this Commonwealth, a representative of the persons of the people annually elected; and in order to provide for a representation of the Citizens of this Commonwealth founded upon the said principle of personal equality, the said fourth article ought to contain the above proposed addition or something tantamount. We are obliged, Gentlemen, to believe that all along in settling the bill of rights, and constructing the frame of Government, the convention had it full in their intention, that the house of representatives should be chosen, and appointed, in such manner as that they should be as properly, and, truly, a representative of the persons as the Senate of the property of the Commonwealth. We say that we are constrained to such a belief, because the convention themselves have plainly declared the same to have been their intention. And it is impossible for us to admit so black a thought as to imagine that the convention had an intention, by their address, to beguile their constituents into a supposition, that provision was made in the frame of Government, for a representative of the persons, as well as for the property of the Commonwealth, when really at the same time they were conscious that it was not so in fact; and that in truth there was not in all the frame of Government, any ground for such distinction, as is supposed in the address; for however justly and exactly the number of Senators in the frame of Government may be apportioned according to the property of each district, and provision made that they should continue forever hereafter to be so apportioned, yet that can never afford any foundation for the distinction of a representative of the persons, and a representative of the property of the Commonwealth: for altho such a provision will truly determine the share or particular part of any given whole number which every district into which the whole State may be divided, shall elect and depute; yet nothing can be more clear than that the ground of distinction between a personal and property representation, must wholly depend on the qualifications of the electors, and that if there shall be no difference made between the qualifications of the voters for the members of the house of Representatives, and for the members of the Senate, but each member of both houses shall be chosen by the same identical persons, as they must necessarily be if the voters for the members of both houses are all to have precisely the like qualifications and no part of the number of persons, having the like qualifications are to be excluded, then the distinction abovesaid is wholly out of doors and becomes an absolute nullity. Who would ever imagine that if all the male persons in this State of the age of twenty one years and of no property should by the constitution have as good a right to give their votes for the Senators, as the men in the State of the best property, and the votes of all the voters should have an equal estimation in determining the election. We say, into whose head could it ever enter to denominate a body so elected, a representative of the property of the Commonwealth however exactly and minutely the number or share of the whole Senate, which each district should be intitled to elect, might be adjusted to the property of each district, in relation to the property of the whole Commonwealth? but the case is so evident that it would be affrontive to dwell any longer upon it. We must therefore judge that this default of providing for a personal representative in the legislature, proceeded from inadvertency and forgetfulness, an infirmity which human nature is universally liable to. And we are further obliged to account for this omission, in the Constitution, in the way abovesaid, by an attention to several matters in the declaration of rights, which, when carefully reviewed, and considered by the Convention, we persuade ourselves will appear, not to harmonize with the omission which we are observing upon.
But that we may come home to the enquiry, concerning the justice of excluding such individuals, inhabitants of this State, from voting, not to say from a right to vote in the choice of a representative (for that is impossible) as come within the description of the proposed addition to the said fourth article; we beg that a recurrence may be had to the second paragraph of the preamble to the declaration of rights. There we find it declared, "that the body politick" (perhaps it might have been more properly said the constitution of the body politick) "is formed by a voluntary association of individuals, it is a social compact by" "which the whole people covenants with each citizen, and each citizen with the whole people that all shall be governed by certain Laws for the common good: it is the duty of the people therefore, in framing a constitution of Government, to provide for an equitable mode of making laws, as well" etc. Now can any one say, that the citizens of the State, who are included in the description of the proposed addition, and who do not answer the description of the said fourth article, as it now stands, have ever covenanted, consented, and agreed, or will ever covenant, consent, and agree, with the rest of the people, to be governed by Laws founded on an article of a constitution, which totally excludes them from any share or voice in appointing the legislature for the State; or will such persons ever consent, and agree, to be governed by laws, which shall be enacted by a legislature, appointed wholly without their participation; or can a constitution so framed be said to provide for an equitable mode of making laws, etc. Will any one stand forth and say, that persons who have been born within the state, and have always lived in it, till they have arrived to the age of twenty one years, perhaps much above that age, and who have always paid their poll tax, ever since they were sixteen years old, and are still rateable, and are rated and pay for their polls, the sum set on each poll, in every rate that is made for defraying either the continental State, or town charges, be the same higher or lower; we say, will any one affirm, that such persons are not citizens of the Commonwealth? Is not the consequence then, if the said paragraph is true, that an association of many individuals, of the State, which without consent totally excludes many such adult male persons, from any participation in the appointment of the legislature, is in fact no constitution, and does not make a body politick? yea, is it not absolutely a void business? As to what may be replied, by way of answer in behalf of infants, that is, persons under the age of twenty one years, we ask leave to refer to what Mr. Locke has most judiciously said, on that head, in the sixth chapter of the second book of his treatise of Government, intitled paternal power; which is much too lengthy to be recited on this occasion, but well deserving to be resorted to. And as to the case of women, of whatever age or condition they may be, we ask leave to refer to what is very sensibly, as well as genteelly said on the Subject, in the twenty ninth page of the Essex result.
We also humbly conceive that the exclusion which we complain of, directly militates and is absolutely repugnant to the genuine sense of the first article of the declaration of Rights; unless it be true that a majority of any State have a right without any forfeiture of the minority to deprive them of what the said first article declares are the natural, essential, and unalienable rights of all men. By that article all men are declared "to be born free and equal;" this is true only with respect to the right of dominion, and jurisdiction over one another. The right of enjoying that equality, freedom, and liberty, is, in the same article, declared unalienable, Very strange it would be, if others should have a right by their superior strength, to take away a right from any individual, which he himself could not alienate by his own consent and agreement; but this will truly be the case, or the exclusion which we except to, is directly repugnant to this first article.
If it is true that all men are naturally equal with respect to a right of dominion, government, and jurisdiction, over each other, that is to say, no one has any degree or spark of such right over another, then it will follow that any given number of such equals, will, if they should all live on the earth for thirty years, and no one of them within that time should be guilty of any crime or fault whereby he should forfeit his native equality and freedom; and no one of them should consent to come under the power and dominion of one or more of the rest, or alienate his native equality and freedom, (and by the way the article declares that he has no right to alienate it,) we suppose that at the end of the thirty years, they will all be as equal and free, as they were at the first moment of their existence. We further suppose that if one hundred of such equal freemen should be at once on the earth together, of what age soever they were, and some one of the hundred, should happen to have an hundred times as much brutal strength, as all the other individuals taken singly, or, perhaps, what is an equivalent thereto, an hundred times as much natural cunning, as any individual of the rest, he would not have any rights against the will of any one of his bretheren, to assume the exercise of dominion and jurisdiction over him, however easy it might be for him to do it; and if no one of the hundred would have a right to do so, we suppose that no ten together would have any right to it, and if not ten, then ninety nine of the hundred would not have any right to domination over the remaining hundreth man; for nought to nought gives but nought; the inevitable consequence then is, that if the ninety nine should endeavour to subjugate, and exercise government, over the hundredth man, without his consent, he would have a good right to resist, and in case the ninety nine should overcome and subdue him, the hundredth man would have a good right, at any time, when any lucky moment presented, to do any thing that should be necessary, to regain his natural liberty and freedom, whereof he had been thus wrongfully deprived; full as good a right against the ninety nine as he would have had against any single one of the hundred, who by his superior brutal strength, had usurped upon him. Now Gentlemen in case the form of Government which you have sent out to the people, shall be affirmed and established, is it not intended that every rateable poll of this state, of the age of twenty one years, shall be obliged to submit, and be subject to such a legislative body, as is therein projected and described? is it not intended that all such persons shall be the subjects of their legislation? and that their persons shall be controlable by the laws of that legislature whether they ever were or shall be the owners of a freehold estate within this state of the annual income of three pounds, or of any estate of the value of sixty pounds or not? Is it not intended that they shall be obliged to contribute to the subsidies, taxes, imposts, or duties, which shall be established, fixed, and laid by such a legislative, and be liable to be restrained of their liberty by the acts of such a legislative, for such causes as they shall judge they ought to be, whether they ever were or shall be qualified, as is expressed in the said fourth article of the third section of chapter first, intitled "house of representatives" or not? then will not such persons be in a state of absolute slavery to such a legislative, while they shall continue without the quantum of property prescribed in the said article? If they are to be subject to the jurisdiction and legislation of your legislature, with regard to life, liberty, and their day wages, or whatever small property they may acquire, and yet have no voice in the appointment of that legislature, what is the difference of their condition from that of the hundredth man who without his consent had jurisdiction usurped over him, by the other ninety nine or any single one of the above mentioned hundred of superior animal strength or natural cunning? But perhaps it will be said that this subjugation of these persons unqualified to vote, and consequently excluded by the Said fourth article, is done by their own consent, as it is done by the convention in whose choice they have, or might have had, a vote; and that Mr. Locke tells us, "that the liberty of a man in society is to be under no other legislative power, but such as is established by his consent;" and that the said legislative body, to be from time to time established without their participation, will be by their consent, as it has been done by the convention, the appointment of which body they had a voice, and consequently they were their agents; and, as their agents have consented to it, it is become the act of the constituents: We answer, that the objection supposes what is not true in fact, to wit, that the convention have been impowered and authorized to agree upon and establish a model of Government for this state, it is certain that the convention have never had such a power given to them, as is evident, if we consider the proposals upon which they were elected, which were that delegates should be chosen by the several towns in this State, for the sole purpose of devising and agreeing upon a constitution or frame of Government to be communicated and laid before the people; which, if two thirds of the people capable of acting, to wit, the freemen of the state, of the age of twenty one years, should accept and affirm, it should then, and not till then, be the constitution of this state, and binding on the whole. And the same is further evident, to wit, that the Convention have no power to establish a Constitution for the State, if they themselves understand their own powers; for they themselves by clear implication acknowledge that they have no such power, in their second resolve of the second of March last, whereby they ask the people that such a power may be given them; not expressly and directly indeed, but implicitly and indirectly: And wherefore do they ask it, if they had it given them by their original appointment? So that if the people should now affirm the frame of Government which the convention have communicated to them, containing the said fourth article, whereby many adult rateable persons who are inhabitants and citizens of this state, and have never done any thing to forfeit their natural and most important rights, are excluded from voting for a representative or representatives for the towns where they dwell; it will be precisely a like case, with that above put, to wit, where the ninety nine of an hundred free and equal men conclude to usurp dominion and jurisdiction over the hundredth man against his will, that is, to deprive him of his natural liberty, which is no other than to enslave him when he has been guilty of nothing, whereby he had forfeited that natural liberty and equality. It is certain that the said section, intitled "house of representatives," supposes that the polls in the State whether they shall be owners of property or not, will always be taxed; witness the second article of the said section, and we know that they always have been the subjects of legislation in this state and have had many heavy burdens and services set on them by the legislature, expecially in time of war, and that will, no doubt, continue to be the case (though probably not in so great a degree) even if they should have a voice in the appointment of representatives.
Dont we know that whenever any mention is made of a tax act, or proposal in the legislature of taxation, it is always spoken of as a tax on polls and estates; that whenever a list is ordered for the purpose of a new valuation, an exact account is directed to be taken of the number of polls above the age of sixteen years in the several towns in this state: and that when the house or their Comittee are settling a valuation, the first business always is to fix the proportion of a single poll to a thousand pound; and dont we know that the owners of a large property, generally, upon such occasions, strive to get the polls share as high as they can; for they are fully sensible, that it is their interest, that the polls share should not be low, for the higher that is, the less will remain on the estates; and they conduct in the case accordingly. Now do we hear from these poor polls, a single objection against the persons who are owners of large property, their voting for the members of the house of representatives? they consider that such property-holders have personal interests and concerns as well as the poor day laborer; further, do they object a word against the owners of the property chusing one entire branch of the legislature, exclusive of themselves, to be guardians of such property? they feel and own the force of the argument for property's having great weight in the legislature, because property ever was, and ever will be, the subject of legislation and taxation. But pray Gentlemen, shall not the polls, the persons of the state, have some weight also, who will always be the subjects of legislation and taxation? Are life, members, and liberty of no value or consideration? Indeed Gentlemen we are shocked at the thought, that the persons of adult men should, like live stock and dead chattels, be brought to account to augment the capital whereon to draw representatives for particular towns, in the same manner as such chattels are to be brought into the property capitals to augment the number of Senators, and when they have been improved and made the most of that may be for that purpose, they should be wholly sunk and discarded not to say like villains but absolutely like brute beasts. Shall these poor adult persons who are always to be taxed as high as our men of property shall prevail to have them set, and their low pittances of day wages, be taken to lighten the burden on property, shall these poor polls who have gone for us into the greatest perils, and undergone infinite fatigues in the present war to rescue us from slavery, and had a great hand, under God, in working out the great salvation in our land, which is, in a great degree wrought out, some of them leaving at home their poor families, to endure the sufferings of hunger and nakedness, shall they now be treated by us like villains and African slaves? God forbid. What have they done to forfeit this right of participating in the choice of one branch of the two branches which are to constitute our legislative, when they are willing that your men of property should enjoy the exclusive right of chusing the first branch? have they forfeited it in the exercise which they have made of this right of participating in the choice of you Gentlemen to your important, very important trust? we hope not, and we hope that you will on further consideration verify it, that they have not, by giving them a voice in the choice and appointment of that very branch of the legislative, which you yourselves tell us is by you intended, to be the representative of the persons of the Commonwealth, and thereby remove all cause for them to regret their choice of you.
Gentlemen, we cannot yet dismiss this very affecting subject. Shall we treat these polls precisely as Britain intended and resolved to treat all the sons of America? that is to say, to bind us in all cases whatsoever, without a single vote for the legislature who were to bind and legislate for us: at which all Americans who deserved freedom, had the highest indignation, and that most justly. We say, who deserved freedom; for he who is willing to enslave his brother, is, if possible, less deserving of liberty, than he who is content to be enslaved. Shall we who hold property, when God shall have fully secured it to us, be content to see our brethren, who have done their full share in procuring that security, shall we be content and satisfied, we say, to see these our deserving brethren on election days, standing aloof, and sneaking into corners, and ashamed to show their heads, in the meetings of freemen, because, by the constitution of the land, they are doomed intruders, if they should appear at such meetings? the thought is abhorrent to justice and too afflictive to good minds to be endured.
The Founders' Constitution
Volume 1, Chapter 15, Document 26
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.
Easy to print version.