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qualified by the pre-existing law, and was no more than a contract to deliver so much paper money, or of whatever other article which might be made a tender, as the original bargain expressed. Arguments of this sort will not be found wanting in favor of tender laws, if the Court yield to similar arguments in favor of bankrupt laws.
These several prohibitions of the constitution stand in the same paragraph; they have the same purpose, and were introduced for the same object; they are expressed in words of similar import, in grammar, and in sense; they are subject to the same construction, and, we think, no reason has yet been given for imposing an important restriction on one part of them, which does not equally show, that the same restriction might be imposed also on the other part.
We have already endeavoured to maintain, that one great political object, intended by the constitution, would be defeated, if this construction were allowed to prevail. As an object of political regulation, it was not important to prevent the States from passing bankrupt laws applicable to present debts, while the power was left to them in regard to future debts; nor was it at all important, in a political point of view, to prohibit tender laws as to future debts, while it was yet left to the States to pass laws for the discharge of such debts, which, after all, are little different, in principle, from tender laws. Look at the law before the Court in this view. It provides that if the debtor will surrender, offer, or tender to trustees, for the benefit of his creditors, all his estate and effects, he shall be discharged from all his debts. If it had authorised a tender of anything but money to any one creditor, though it were of a value equal to the debt, and thereupon provided for a discharge, it would have been clearly invalid. Yet it is maintained to be good, merely because it is made for all creditors, and seeks a discharge from all debts; although the thing tendered may not be equivalent to a shilling in the pound of those debts. This shows, again, very clearly how the constitution has failed of its purpose, if, having in terms prohibited all tender laws, and taken so much pains to establish a uniform medium of payment, it has yet left the States the power of discharging debts, as they may see fit, without any payment at all.
To recapitulate what has been said, we maintain; first, that the constitution, by its grants to Congress, and its prohibitions on the States, has sought to establish one uniform standard of value, or medium of payment. Second, that, by like means, it has endeavoured to provide for one uniform mode of discharging debts, when they are to be discharged without payment. Third, that these objects are connected, and that the first loses much of its importance, if the last, also, be not accomplished. Fourth, that reading the grant to Congress and the prohibition on the States together, the inference is strong that the constitution intended to confer an exclusive power to pass bankrupt laws on Congress. Fifth, that the prohibition, in the tenth section, reaches to all contracts existing or future, in the same way as the other prohibition in the same section extends to all debts existing or future. Sixthly, and that, upon any other construction, one great political object of the constitution will fail of its accomplishment.
IN THE CONVENTION OF DELEGATES CHOSEN TO REVISE THE CONSTITUTION OF MASSACHUSETTS, UPON THE RESOLUTION RELATIVE TO OATHS OF OFFICE. 1821.
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, pre
scribe 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. It would seem to follow, then, that those who confer office may annex any such conditions to it as they think proper. If they prefer one man to another, they may act on that preference. If they regard certain personal qualifications, they may act accordingly, and ground of complaint is given to nobody. Between two candidates, otherwise equally qualified, the people at an election, may decide in favor of one because he is a Christian, and against the other because he is not. They may repeat this preference at the next election, on the same ground, and may continue it from year to year. Now, if the people may, without injustice, act upon this preference, and from a sole regard to this qualification, and refuse in any instance to depart from it, they have an equally clear right to prescribe this qualification, beforehand, as a rule for their future government. If they may do it, they may agree to do it. If they deem it necessary, they may so say, beforehand. If the public will may require this qualification, at every election as it occurs, the public will may declare itself beforehand; and make such qualification a standing requisite. That cannot be an unjust rule, the compliance with which, in every case, would be right. This qualification has nothing to do with any man's conscience. If he dislike the condition, he may decline the office; in like manner as if he dislike the salary, the rank, or anything else which the law attaches to it. However clear the right may 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 opprobium-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 have 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. There is one other consideration to which I will allude, although it was not urged in committee. It is this. This qualificaton is made applicable only to the executive and the members of the legislature.— It would not be easy, perhaps, to say why it should not be extended to the judiciary, if it were thought necessary for any office. There can be no office, in which the sense of religious responsibility is more necessary, than in that of a judge; especially of those judges who pass, in the last resort, on the lives, liberty and property of every man. There may be among legislators, strong passions and bad passions. There may be party heats and personal bitterness. But legislation is in its nature general laws usually affect the whole society; and if mischievous or unjust, the whole society is alarmed, and seeks their repeal. The judiciary power, on the other hand, acts directly on individuals. The injured may suffer, without sympathy or the hope of redress. The last hope of the innocent, under accusation, and in distress, is in the integrity of his judges. If this fail, all fails; and there is no remedy, on this side the bar of Heaven. Of all places, therefore, there is none which so imperatively demands, that he who occupies it should be under the fear of God, and above all other fear, as the situation of a judge. For these reasons, perhaps, it might be thought, that the constitution has not gone far enough, if the provisions already in it were deemed necessary to the public security. I believe I have stated the substance of the reasons which appeared to have weight with the committee. 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 recognises, 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.
IN THE CONVENTION, UPON THE RESOLUTION TO DIVIDE THE COMMONWEALTH INTO DISTRICTS FOR THE CHOICE OF SENATORS ACCORDING TO POPULATION.
I KNOW not, sir, whether it be probable that any opinions or votes of mine are ever likely to be of more permanent importance, than those which I may give in the discharge of my duties in this body. And of the questions which may arise here, I anticipate no one of greater consequence than the present. I ask leave, therefore, to submit a few remarks to the consideration of the committee.
The subject before us, is the manner of constituting the legislative department of government. We have already decided, that the legislative power shall exist as it has heretofore existed, in two separate and distinct branches, a Senate and a House of Representatives. We propose also, at least I have heard no intimation of a contrary opinion, that these branches shall, in form, possess a negative on each other. And I presume I may take it for granted, that the members of both these houses are to be chosen annually. The immediate question now under discussion, is, In what manner shall the senators be elected? They are to be chosen in districts; but shall they be chosen, in proportion to the number of inhabitants in each district, or in proportion to the taxable property of each district, or, in other words, in proportion to the part which each district bears in the public burdens of the state. The latter is the existing provision of the constitution; and to this I give my support. The proposition of the honorable member from Roxbury, (Mr. Dearborn,) proposes to divide the state into certain legislative districts, and to choose a given number of senators, and a given number of representatives, in each district, in proportion to population. This I understand. It is a simple and plain system. The honorable member from Pittsfield, and the honorable member from Worcester support the first part of this proposition-that is to say, that part which provides for the choice of senators, according to population-without explaining entirely their views, as to the latter part, relative to the choice of representatives. They insist that the questions are distinct, and capable of a separate consideration and decision. I confess myself, sir, unable to view the subject in that light. It seems to me, there is an essential propriety in considering the questions together; and in forming our opinions on the constitution of one, with reference