There seems then to be a foundation in the nature of things, in the relation which one generation bears to another, for the descent of obligations from one to another. Equity requires it. Mutual good is promoted by it. All that is indispensable in adjusting the account between the dead and the living is to see that the debits against the latter do not exceed the advances made by the former. Few of the incumbrances entailed on nations would bear a liquidation even on this principle.
The objections to the doctrine as applied to the 3d. class of acts may perhaps be merely practical. But in that view they appear to be of great force.
Unless such laws should be kept in force by new acts regularly anticipating the end of the term, all the rights depending on positive laws, that is, most of the rights of property would become absolutely defunct; and the most violent struggles be generated between those interested in reviving and those interested in new-modelling the former state of property. Nor would events of this kind be improbable. The obstacles to the passage of laws which render a power to repeal inferior to an opportunity of rejecting, as a security against oppression, would here render an opportunity of rejecting an insecure provision against anarchy. Add, that the possibility of an event so hazardous to the rights of property could not fail to depreciate its value; that the approach of the crisis would increase this effect; that the frequent return of periods superseding all the obligations depending on antecedent laws and usages, must be weak[en]ing the reverence for those obligations, co-operate with motives to licentiousness already too powerful; and that the uncertainty incident to such a state of things would on one side discourage the steady exertions of industry produced by permanent laws, and on the other, give a disproportionate advantage to the more, over the less, sagacious and interprizing part of the Society.
I find no releif from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred, where no positive dissent appears. It seems less impracticable to remedy, by wise plans of Government, the dangerous operation of this doctrine, than to find a remedy for the difficulties inseparable from the other.
May it not be questioned whether it be possible to exclude wholly the idea of tacit assent, without subverting the foundation of civil Society?
On what principle does the voice of the majority bind the minority ? It does not result I conceive from the law of nature, but from compact founded on conveniency. A greater proportion might be required by the fundamental constitution of a Society if it were judged eligible. Prior then to the establishment of this principle, unanimity was necessary; and strict Theory at all times presupposes the assent of every member to the establishment of the rule itself. If this assent can not be given tacitly, or be not implied where no positive evidence forbids, persons born in Society would not on attaining ripe age be bound by acts of the Majority; and either a unanimous repetition of every law would be necessary on the accession of new members, or an express assent must be obtained from these to the rule by which the voice of the Majority is made the voice of the whole.
If the observations I have hazarded be not misapplied, it follows that a limitation of the validity of national acts to the computed life of a nation, is in some instances not required by Theory, and in others cannot be accomodated to practice. The observations are not meant however to impeach either the utility of the principle in some particular cases; or the general importance of it in the eye of the philosophical Legislator. On the contrary it would give me singular pleasure to see it first announced in the proceedings of the U. States, and always kept in their view, as a salutary curb on the living generation from imposing unjust or unnecessary burdens on their successors. But this is a pleasure which I have little hope of enjoying. The spirit of philosophical legislation has never reached some parts of the Union, and is by no means the fashion here, either within or without Congress. The evils suffered and feared from weakness in Government, and licentiousness in the people, have turned the attention more towards the means of strengthening the former than of narrowing its extent in the minds of the latter. Besides this, it is so much easier to espy the little difficulties immediately incident to every great plan, than to comprehend its general and remote benefits, that our hemisphere must be still more enlightened before many of the sublime truths which are seen thro’ the medium of Philosophy, become visible to the naked eye of the ordinary Politician. I have nothing to add at present but that I remain always and most af fectly. Yours,
JS. MADISON JR.
PROPOSING AMENDMENTS
Massachusetts Ratification Convention (February 6, 1788)
PAGE 591
Virginia Ratification Convention (June 27, 1788)
PAGE 594
New York Ratification Convention (July 26, 1788)
PAGE 600
IN RATIFICATION CONVENTIONS WHERE they enjoyed decided majorities, Federalists felt little inclination to placate their opponents, and insisted that the Constitution be ratified as proposed. In states where the sides were more evenly balanced, like Massachusetts, or where Anti-Federalists had potential or real majorities, like Virginia and New York, the Constitution’s supporters had to act more prudently. Here they adopted a twofold strategy. On the one hand, they still insisted that the Constitution had to be ratified now, in its entirety, without prior conditions to be satisfied before a state’s assent would be conclusive. But on the other hand, if those conditions were met, Federalists indicated they would acquiesce in recommending amendments for future consideration, presumably by the first Congress to meet under the new Constitution. In the three populous and critical states just mentioned, this formula became the basis for securing ratification.
Many scholars have argued that this process produced an effective promise by Federalists to make sure that articles like the eventual Bill of Rights would be added to the Constitution. The decision to recommend amendments thus became another compromise, like those that affected the rules of representation in the new Congress. Federalists, however, did not see it quite the same way. Their main goal was to make sure that the Constitution was ratified immediately and unconditionally, and that is what happened. Whether amendments would be added, and if so, what kind, were matters to be determined later.
MASSACHUSETTS RATIFICATION CONVENTION
FEBRUARY 6, 1788
COMMONWEALTH OF MASSACHUSETTS.
In Convention of the delegates of the PEOPLE of the
Commonwealth of Massachusetts February 6th. 1788.
THE CONVENTION HAVING IMPARTIALLY discussed, & fully considered The Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America, & submitted to us by a resolution of the General Court of the said Commonwealth, passed the twenty fifth day of October last past, & acknowledging with grateful hearts the goodness of the Supreme Ruler of the Universe in affording the People of the United States in the course of his providence an opportunity deliberately & peaceably without fraud or surprize of entering into an explicit & solemn Compact with each other by assenting to & ratifying a New Constitution in order to form a more perfect Union, establish Justice, insure Domestic tranquillity, provide for the common defence, promote the general welfare & secure the blessings of Liberty to themselves & their posterity; Do in the name & in behalf of the People of the Commonwealth of Massachusetts assent to & ratify the said Constitution for the United States of America.
And as it is the opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.
First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States t
o be by them exercised.
Secondly, That there shall be one representative to every thirty thousand persons according to the Census mentioned in the Constitution until the whole number of the Representatives amounts to Two hundred.
Thirdly, That Congress do not exercise the powers vested in them by the fourth Section of the first article, but in cases when a State shall neglect or refuse to make the regulations therein mentioned or shall make regulations subversive of the rights of the People to a free & equal representation in Congress agreeably to the Constitution.
Fourthly, That Congress do not lay direct Taxes but when the Monies arising from the Impost & Excise are insufficient for the Publick exigencies nor then until Congress shall have first made a requisition upon the States to assess levy & pay their respective proportions of such Requisition agreeably to the Census fixed in the said Constitution, in such way & manner as the Legislature of the States shall think best, & in such case if any State shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess & levy such State’s proportion together with interest thereon at the rate of Six per cent per annum from the time of payment prescribed in such requisition.
Fifthly, That Congress erect no Company of Merchants with exclusive advantages of Commerce.
Sixthly, That no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by a Grand Jury, except in such cases as may arise in the Government & regulation of the Land & Naval forces.
Seventhly, The Supreme Judicial Federal Court shall have no jurisdiction of Causes between Citizens of different States unless the matter in dispute whether it concerns the realty or personalty be of the value of Three thousand dollars the least nor shall the Federal Judicial Powers extend to any actions between Citizens of different States where the matter in dispute whether it concerns the Realty or Personalty is not of the value of Fifteen hundred dollars at the least.
Eighthly, In civil actions between Citizens of different States every issue of fact arising in Actions at common law shall be tried by a Jury if the parties or either of them request it.
Ninthly, Congress shall at no time consent that any Person holding an office of trust or profit under the United States shall accept of a title of Nobility or any other title or office from any King, Prince or Foreign State.
And the Convention do in the name & in behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress at all times until the alterations & provisions aforesaid have been considered agreeably to the Fifth article of the said Constitution to exert all their influence & use all reasonable & legal methods to obtain a ratification of the said alterations & provisions in such manner as is provided in the said Article.
And that the United States in Congress Assembled may have due notice of the Assent & Ratification of the said Constitution by this Convention it is, Resolved, that the Assent & Ratification aforesaid be engrossed on Parchment together with the recommendation & injunction aforesaid & with this resolution & that His Excellency John Hancock Esqr. President & the Honble. William Cushing Esqr. Vice President, of this Convention transmit the same, countersigned by the Secretary of the Convention under their hands & seals to the United States in Congress Assembled.
George Richards Minot, Secretary.
John Hancock President
Wm Cushing Vice President
Pursuant to the Resolution aforesaid WE the President & Vice President abovenamed Do hereby transmit to the United States in Congress Assembled, the same Resolution with the above Assent and Ratification of the Constitution aforesaid for the United States, And the recommendation & injunction above specified.
In Witness whereof We have hereunto set our hands & seals at Boston in the Commonwealth aforesaid this Seventh day of February Anno Domini one thousand Seven Hundred & Eighty eight, and in the Twelfth year of the Independence of the United States of America.
John Hancock President
Wm Cushing Vice President
VIRGINIA RATIFICATION CONVENTION
JUNE 27, 1788
DEBATES
[Another engrossed form of the ratification agreed to on Wednesday last, containing the proposed Constitution of Government, as recommended by the Federal Convention on the seventeenth day of September, one thousand seven hundred and eighty seven, being prepared by the Secretary, was read, and signed by the President in behalf of the Con [ven] tion.
On motion, Ordered, That the said ratification be deposited by the Secretary of this Convention in the archives of the General Assembly of this State.
Mr. Wythe reported, from the Committee appointed, such amendments to the proposed Constitution of Government for the United States, as were by them deemed necessary to be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the fifth article thereof; and he read the same in his place, and afterwards delivered them in at the Clerk’s table, where the same were again read, and are as followeth:
That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people in some such manner as the following:
1st. That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
2d. That all power is naturally vested in, and consequently derived from, the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.
3d. That Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression, is absurd, slavish, and destructive to the good and happiness of mankind.
4th. That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.
5th. That the Legislative, Executive and Judiciary powers of Government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.
6th. That elections of Representatives in the Legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their Representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.
7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the Representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised.
8th. That in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.
9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed, or exiled, or in any manner destroye
d or deprived of his life, liberty, or property, but by the law of the land.
10th. That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.
llth. That in controversies respecting property, and in suits between man and man, the ancient trial by jury, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.
12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments or regulations, contravening these rights, are oppressive and unjust.
13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
14th. That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property : all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.
15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their Representatives ; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.
16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.
Founding America: Documents from the Revolution to the Bill of Rights Page 69
