Part 5

"In the Select Committee, I was in favor of a plan of representation in the House founded on population, as the most just and equal in its operation. I still retain that opinion. There were serious objections against this system, and it was believed by others that the towns could not be brought to consent to yield up the corporate privileges of representation, which had been enjoyed so long, and were so intimately connected with their pride and their interests. I felt constrained, therefore, with great reluctance, to yield up a favorite plan. I have lived long enough to know, that, in any question of government, something is to be yielded up on all sides. Conciliation and compromise lie at the origin of every free government; and the question never was and never can be, what is absolutely best, but what is relatively wise, just, and expedient. I have not hesitated, therefore, to support the plan of the Select Committee, as one that, on the whole, was the best that, under existing circumstances, could be obtained."[22]

[22] Debates, etc., in the Convention to revise the Constitution of Massachusetts, 1820-21, p. 136 _c._ Story's Miscellaneous Writings, p. 518.

Sir, I am not insensible to these considerations, or to the authority of these examples. A division of the State into districts would be a change, in conformity with abstract principles, which would interfere with existing opinions, habitudes, and prejudices of the towns, all of which must be respected. A change so important in character cannot be advantageously made, unless supported by the permanent feelings and convictions of the people. Institutions are formed _from within_, not _from without_. They spring from custom and popular faith, silently operating with internal power, not from the imposed will of a lawgiver. And our present duty here, at least on this question, may be in some measure satisfied, if we aid this growth.

Two great schools of jurisprudence for a while divided the learned mind of Germany,--one known as the Historic, the other as the Didactic. The question between them was similar to that now before the Convention. The first regarded all laws and institutions as the growth of custom, under constant influences of history; the other insisted upon positive legislation, giving to them a form in conformity with abstract reason. It is clear that both were in a measure right. No lawgiver or statesman can disregard either history or abstract reason. He must contemplate both. He will faithfully study the Past, and will recognize its treasures and traditions; but, with equal fidelity, he will set his face towards the Future, where all institutions will at last be in harmony with truth.

I have been encouraged to believe in the practicability of the District System by its conformity with reason, and by seeing how naturally it went into operation under the Constitution of the United States. But there is a difference between that case and the present. A new Government was then founded, with new powers, applicable to a broad expanse of country; but the Constitution of Massachusetts was little more than a continuation of preëxisting usages and institutions, with all dependence upon royalty removed. This distinction may help us now. If the country were absolutely new, without embarrassment from existing corporate rights,--_claims_ I would rather call them,--it might easily be arranged according to the most approved theory, as Philadelphia is said to have been originally laid out on the model of the German city which its great founder had seen in his travels.[23] But to bring our existing system into symmetry, and to lay it out anew, would seem to be a task--at least I am reluctantly led to this conclusion by what I have heard here--not unlike that of rebuilding Boston, and of shaping its compact mass of crooked streets into the regular rectangular forms of the city of Penn. And yet this is not impossible. With each day, by demolishing ancient houses and widening ancient ways, changes are made which tend to this result.

[23] Julius, Nordamerikas Sittliche Zustände, Band I. p. 92.

Sir, we must recognize the existing condition of things, remedy all practical grievances so far as possible, and set our faces towards the true system. We must act in the Present, but be mindful also of the Future. There are proper occasions for compromise, as most certainly there are rights beyond compromise. But the Representative System is an expedient or device for ascertaining the popular will, and, though well satisfied that this can be best founded on numbers, I would not venture to say, in the present light of political science, that the right of each man to an equal representation, according to the Rule of Three, and without regard to existing institutions or controlling usages, is of that inherent and lofty character--like the God-given right to life or liberty--which admits of no compromise.

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Several grievances exist, which will be removed by the proposed amendments. There is one which I had hoped would disappear, but which is the necessary incident of corporate representation: I mean the unwieldy size of the House.

It is generally said that a small body is more open to bribery and corruption than a large body; but, on the other hand, I have heard it asserted that the larger is more exposed than the smaller. I put this consideration aside. My objection to a large House is, that it is inconvenient for the despatch of public business. There is a famous saying of Cardinal de Retz, that every assembly of more than one hundred is a mob; and Lord Chesterfield applied the same term to the British House of Commons. At the present time that body has nominally six hundred and fifty-four members. It is called by Lord Brougham "preposterously large"; but a quorum for business is forty only; and it is only on rare occasions of political importance that its benches are completely occupied. The House of Lords, nominally, has four hundred and fifty-nine members; but a quorum in this body consists of three only;[24] and much of its business is transacted in a very thin attendance.

[24] According to the old rule, _Tres faciunt collegium._

The experience of Congress, as also of other States, points to a reduction of our present number. Indeed, for many years this was a general desire through the State. In the earliest Colonial days every town was allowed three deputies; but in five years the number, on reaching thirty-three, was reduced to two for each.[25] At a later day, in 1694, a great contest in the House was decided by a vote of twenty-six against twenty-four.[26] In the agitating period between 1762 and 1773, covering the controversies which heralded the Revolution, the House consisted, on an average, of one hundred and twenty members; and only on one occasion the magnitude of the interest is reported by Hutchinson to have drawn together so many as one hundred and thirteen. At the last session of the Provincial Legislature, in May, 1774, when the Revolutionary conflict was at hand, the complete returns of the Journal show one hundred and forty. In 1776 there was a House of three hundred and five; but this "enormous and very unwieldy size," according to the language of the time, was assigned as a reason for a new Constitution. I regret that we cannot profit by this experience. A House of two hundred and fifty, or, since we are accustomed to large congregations,[27] of three hundred at most, would be an improvement on the present system.

[25] Records of the Governor and Company of the Massachusetts Bay, Vol. I. pp. 118, 250, 254.

[26] Hutchinson, History of Massachusetts, Vol. II. p. 77.

[27] The House for many years numbered upwards of five hundred members,--in 1835, '36, and '37 swelling to the truly "enormous and unwieldy size" of 615, 619, and 635; and even under the greatly reduced apportionment established by the Amendment of 1840, the numbers in the two years (1851 and 1852) preceding the present Convention were no less than 396 and 402. See Gifford and Stowe's Manual for the General Court, (Boston, 1860,) p. 130.

There are two proposed improvements which I hail with satisfaction: one relates to the small towns, and the other to the cities. The small towns will have a more constant representation; and this of itself is an approach to the true principle of representation, which should be constant as well as equal. The cities will be divided into districts, and this I regard of twofold importance: first, as the beginning of a true system; and, secondly, as reducing the power which the cities, by the large number of their representatives, chosen by general ticket, now exercise.

A respected gentleman, now in my eye, has reminded me that in boyhood his attention was arrested in this House by what was called "the Boston seat," reserved exclusively for the Boston members, who sat together on cushions, while other members were left to such accommodation as they could find on bare benches. This discrimination ceased long ago. But it seems to me that this reserved and cushioned seat is typical of another discrimination, which Boston, in common with the cities, still enjoys. Sir, in voting for forty-four representatives, the elector in Boston exercises a representative power far exceeding that of electors in the country; and the majority which rules Boston and determines the whole delegation exercises a representative power transcending far that of any similar number in the Commonwealth. This is apparent on the bare statement, as forty-four sticks are stronger in one compact bundle than when single or in small parcels. Thus, while other counties are divided, the delegation from Boston is united. In all political contests, it is like the well-knit Macedonian phalanx, or the iron front of the Roman legion, in comparison with the disconnected individual warriors against whom they were engaged. This abuse will be removed; and here is the beginning, I had almost said the inauguration, of a true electoral equality in our Commonwealth.

And now, in conclusion, while thanking gentlemen for the kind attention with which they have honored me, let me express briefly the result to which I have come. I have openly declared my convictions with regard to the District System, and in accordance with these have recorded my votes in this Convention. These votes, which reveal my inmost desires on this matter, I would not change. But the question is not now between the District System, which I covet so much for Massachusetts, and the proposed amendments, but between these amendments and the existing system. On this issue I decide without hesitation. I shall vote, Sir, for the propositions of amendment before the Convention, should they come to a question on their final passage, not because they are all that I desire, not because they satisfy the requirement of principles which I cannot deny, not because they constitute a permanent adjustment of this difficult question, but because they are the best which I can now obtain, because they reform grievances of the existing system, and because they begin a change which can end only in the establishment of a Representative System founded in reality, as in name, on _Equality_. Their adoption will be the triumph of conciliation and harmony, and will furnish new testimony to the well-tempered spirit of our institutions, where

"jarring interests, reconciled, create The according music of a well-mixed State."

BILLS OF RIGHTS: THEIR HISTORY AND POLICY.

SPEECH ON THE REPORT FROM THE COMMITTEE ON THE BILL OF RIGHTS, IN THE CONVENTION TO REVISE AND AMEND THE CONSTITUTION OF MASSACHUSETTS, JULY 25, 1853.

As Chairman of the Committee on the Bill of Rights, Mr. Sumner submitted a Report, on which, in Committee of the Whole, he spoke as follows.

Mr. Chairman,--As Chairman of the Committee on the Preamble and Bill of Rights, it is my duty to introduce and explain their Report. It will be perceived that it is brief, and proposes no important changes. But in justice to the distinguished gentlemen with whom I have the honor of being associated on that Committee, I deem it my duty to suggest that the extent of their labors must not be judged by this result. It appears from the proceedings of the Convention of 1820, that the Committee on the Bill of Rights at that time sat longer than any other Committee. I believe that the same Committee in the present Convention might claim the same preëminence. Their records show twenty different sessions.

At these sessions, the Preamble and the Bill of Rights, in its thirty different propositions, were passed in review and considered clause by clause; the various orders of the Convention, amounting to twelve in number, the petitions addressed to the Convention and referred to the Committee, as also informal propositions from members of the Convention and others were considered, some of them repeatedly and at length. On many questions there was a decided difference of opinion, and on a few the Committee was nearly equally divided. But after the best consideration we could bestow in our protracted series of meetings, it was found that the few simple propositions now on your table were all upon which a majority of the Committee could be brought to unite. As such I was directed to present them. Admonished by the lapse of time and the desire to close these proceedings, I might be content with this simple statement.

But, notwithstanding the urgency of our business, I cannot allow the opportunity to pass--indeed, I should not do my duty--without attempting for a brief moment to show the origin and character of this part of our Constitution. In this way we may learn its weight and authority, and appreciate the difficulty and delicacy of any change in its substance or even its form. I will try not to abuse your patience.

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The Preamble and Bill of Rights, like the rest of our Constitution, were from the pen of John Adams,--among whose published works the whole document, in its original draught, may be found. At the time when he rendered this important service to his native Commonwealth and to the principles of free institutions everywhere, he was forty-four years of age. He was also quite prepared. The natural maturity of his powers had been enriched by the well-ripened fruit of assiduous study and of active life, both of which concurred in him. The examples of Greece and Rome and the writings of Sidney and Locke were especially familiar to his mind. The Common Law he had made his own, and mastered well its whole arsenal of Freedom. For a long time the vigorous and unfailing partisan of the liberal cause in Boston, throughout its many conflicts,--then in Congress, whither he was transferred, the irresistible champion of Independence,--and then the republican representative of the United, but still struggling, Colonies at the Court of France,--in the brief interval between two foreign missions, only seven days after landing from his long ocean voyage, he was chosen a delegate to the Constitutional Convention, and at once brought all his varied experience, rare political culture, and eminent powers to the task of adjusting the framework of government for Massachusetts. As his work, it all claims our regard; and no part bears the imprint of his mind so much as the Preamble and Bill of Rights; nor is any other part authenticated as coming so exclusively from him.

At the time of its first adoption the Massachusetts Bill of Rights was more ample in provisions and more complete in form than any similar declaration in English or Colonial history. Glancing at its predecessors, we learn something of its sources. First came, long back in the thirteenth century, Magna Charta, with generous safeguards of Freedom, wrung from King John by the Barons at Runnymede. From time to time these liberties were confirmed, and, after an interval of centuries, they were again ratified, near the beginning of the unhappy reign of Charles the First, by a Parliamentary Declaration, to which the monarch assented, known as the Petition of Right, which, in its very title, reveals the humility with which the rights of the people were then maintained. Finally, in a different tone and language, at the Revolution of 1688, when James the Second was driven from his dominions, a "Declaration of the true, ancient, and indubitable rights and liberties of the people of the kingdom," familiarly known as the Bill of Rights, was delivered by the Convention Parliament to the new sovereigns, William and Mary, and embodied in the Act of Settlement, by virtue of which they sat on the throne. These, Sir, are English examples.

Their influence was not confined to England. It crossed the ocean. From the beginning the Colonists were tenacious of the rights and liberties of Englishmen, and at various times and in various forms declared them. Connecticut, as early as 1639, Virginia in 1624 and 1776, Pennsylvania in 1682, New York in 1691,--and I might mention others still,--put forth Declarations, brief and meagre, but kindred to those of the mother country. In the Colony of New Plymouth, the essential principles of Magna Charta were proclaimed in 1636, under the name of "The General Fundamentals"; and in 1641 the inhabitants of Massachusetts Bay announced, in words worthy of careful study, that "the free fruition of such Liberties, Immunities, and Privileges, as Humanity, Civility, and Christianity call for, as due to every man in his place and proportion, without impeachment and infringement, hath ever been and ever will be the tranquillity and stability of Churches and Commonwealths, and the denial or deprival thereof the disturbance, if not the ruin, of both."[28] Such was the Preamble to the "Body of Liberties" of the Massachusetts Colony in 1641. It would be difficult to find any text more comprehensive than these remarkable words,--the object being "Liberties, Immunities, and Privileges," to such extent "as Humanity, Civility, and Christianity call for"; and this Declaration, broader than Magna Charta, became the inspiration of Massachusetts, if not of the Nation. Nor does Massachusetts stand alone in this honor. Connecticut is by her side.[29]

[28] Preamble to the Body of Liberties of the Massachusetts Colony, 1641: Coll. Mass. Hist. Soc., 3d Ser. Vol. VIII. p. 216. See also General Laws and Liberties of the Massachusetts Colony, revised and reprinted by Order of the General Court, 1672, p. 1.

[29] The Preamble in combination with the first Article of the Massachusetts Body of Liberties was adopted as the Preamble to the Connecticut Code of 1650. See Public Records of the Colony of Connecticut, edited by J. H. Trumbull, (Hartford, 1850,) p. 509; and compare with Coll. Mass. Hist. Soc., _ut supra_.

I should not do justice to this "Body of Liberties," if I did not call attention to at least four different declarations. There is, first, the clause: "There shall never be any bond slavery, villenage, or captivity amongst us, unless it be lawful captives taken in just wars, and such strangers as willingly sell themselves or are sold to us"; and although this provision falls short of that universal freedom which is our present aspiration, it is a plain limitation upon Slavery, and marks the hostility of the Colony. Another declaration sets an example of hospitality: "If any people of other nations, professing the true Christian religion, shall flee to us from the tyranny or oppression of their persecutors, or from famine, wars, or the like necessary and compulsory cause, they shall be entertained and succored amongst us according to that power and prudence God shall give us." And it is further declared: "Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same Justice and Law that is general for the Plantation, which we constitute and execute one towards another, without partiality or delay." Here is nothing less than Equality before the Law, without this compendious term. There is another declaration, which has the same exalted character: "Every man, whether inhabitant or foreigner, free or not free, shall have liberty to come to any public Court, Council, or Town Meeting, and either by speech or writing to move any lawful, seasonable, and material question, or to present any necessary motion, complaint, petition, bill, or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner." Such declarations as these belong to the history of Freedom.

In the animated discussions immediately preceding the Revolution, the rights and liberties of Englishmen were constantly asserted as the birthright of the Colonists. This was often by formal resolution or declaration, couched at first in moderate phrase. At the outrage of the Stamp Act, a Congress of delegates from nine Colonies, held at New York in October, 1765, put forth a series of resolutions embodying "_Declarations of our humble opinion_ respecting the most essential rights and liberties of the Colonists."[30] The humility of this language recalls the English Petition of Right under Charles the First. This was followed in 1774 by the Declaration of the Continental Congress, which, in another tone and with admirable force, in ten different propositions, arrays the rights which belong to "the inhabitants of the English Colonies in North America, by the immutable Laws of Nature, the Principles of the English Constitution, and the several Charters or Compacts."[31]

[30] Proceedings of the Congress at New York, p. 5. Hutchinson's History of Massachusetts, Vol. III., Appendix, p. 479.

[31] Journals of Congress, October 14, 1774, Vol. I. p. 28.

"Time's noblest offspring is the last";

and the whole Colonial series is aptly closed by the Declaration of Independence, announcing not merely the rights of Englishmen, but the rights of men.

Only a few brief weeks before the Declaration of Independence, Virginia, taking the lead of her sister Colonies, established a Constitution, to which was prefixed an elaborate Declaration of Rights. This remarkable document, which became the immediate precedent for the whole country, marks an epoch in political history. Massachusetts and Connecticut had already led the way in that early and most comprehensive Preamble, which has been too little noticed; but in all English Declarations of Rights, and generally even in those of the Colonies, stress was laid upon the liberties and privileges of Englishmen. The rights claimed even by the Continental Congress of 1774, in their masculine Declaration, were the rights of "free and natural-born subjects within the realm of England." But the Virginia Bill of Rights, standing at the front of its first Constitution, discarded all narrow title from mere English precedent, planted itself on the eternal law of God, above every human ordinance, and openly proclaimed that "all men are by nature equally free and independent,"--a declaration which is repeated, though in other language, by the Massachusetts Declaration of Rights.

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