Organic Compact
The following is the declaration of the Convention of Delegates from the towns of Lynn, Salem, Danvers, Wenham, Manchester, Gloucester, Ipswich, Newbury-Port, Salidsbury, Methuen, Boxford and Topsfield held at Ipswich in the County of Essex reacting to the 1778 Massachusetts constitution drawn by its own existing colonial legislature.
Excerpts from the "Essex Result," 1778
"All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of these rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange. Sometimes we shall mention the surrendering of a power to controul our natural rights, which perhaps is speaking with more precision, than when we use the expression of parting with natural rights - but the same thing is intended. These rights which are unalienable, and of that importance, are called the rights of conscience. We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a controul over it, is an usurper; for no consent can be pleaded to justify the controul, as any consent in this case is void. The alienation of some rights, in themselves alienable, may also be void, if the bargain is of that nature, that no equivalent can be received. Thus, if a man surrender all his alienable rights, without reserving a controul over the supreme power, or a right to resume in certain cases, the surrender is void, for he becomes a slave; and a slave can receive no equivalent. Common equity would set aside this bargain.
"When men form themselves into society, and erect a body politic or State, they are to be considered as one moral whole, which is in the possession of the supreme power of the State. This supreme power is composed of the powers of each individual collected together, and voluntarily parted with by him. No individual, in this case, parts with unalienable rights, the supreme power therefore cannot controul them. Each individual also surrenders the power of controuling his natural alienable rights, only when the good of the whole requires it. The supreme power therefore can do nothing but what is for the good of the whole; and when it goes beyond this line, it is a power usurped. If the individual receives an equivalent for the right of controul he has parted with, the surrender of that right is valid; if he receives no equivalent, the surrender is void, and the supreme power as it respects him is an usurper. If the supreme power is so directed and executed that he does not enjoy political liberty, it is an illegal power, and he is not bound to obey. Political liberty is by some defined, a liberty of doing whatever is not prohibited by law. The definition is erroneous. A tyrant may govern by laws. The republics of Venice and Holland govern by laws, yet those republics have degenerated into insupportable tyrannies. Let it be thus defined; political liberty is the right every man in the state has, to do whatever is not prohibited by the laws, to which he has given his consent. This definition is in unison with the feelings of a free people. But to return - If a fundamental principle on which each individual enters into society is, that he shall be bound by no laws but those to which he has consented, he cannot be considered as consenting to any law enacted by a minority; for he parts with the power of controuling his natural rights, only when the good of the whole requires it; and of this there can be one absolute judge in the State. If the minority can assume the right of judging, there may then be two judges; for however large the minority may be, there must be another body still larger, who have he same claim, if not a better, to the right of absolute determination. If therefore, the supreme power should be so modelled and exerted, that a law may be enacted by a minority, the enforcing of that law upon an individual who is opposed to it, is an act of tyranny. Further, as every individual, in entering into the society, parted with a power of controuling his natural rights equal to that parted with by any other, or in other words, as all the members of the society contributed an equal portion of their natural rights, towards the forming of the supreme power, so every member ought to receive equal benefit from, have equal influence in forming, and retain an equal controul over, the supreme power.
"It has been observed, that each individual parts with the power of controuling his natural alienable rights, only when the good of the whole requires it; he therefore has remaining, after entering into political society, all his unalienable natural rights, and a part also of his alienable natural rights, provided the good of the whole does not require the sacrifice of them. Over the class of unalienable rights the supreme power hath no controul, and they ought to be clearly defined and ascertained in a Bill of Rights, previous to the ratification of any constitution. The bill of rights should also contain the equivalent every man receives, as a consideration for the rights he has surrendered. This equivalent consists principally in the security of his person and property, and is also unassailable by the supreme power; for if the equivalent is taken back, those natural rights which were parted with to purchase it, return to the original proprietor, as nothing more is true, than that allegiance and protection are reciprocal."
"The following principles now seem to be established.
"1. That the supreme power is limited, and cannot controul the unalienable rights of mankind, nor resume the equivalent (that is the security of person and property) which each individual receives as a consideration for the alienable rights he parted with in entering into political society.
"2. That these unalienable rights, and this equivalent, are to be clearly defined and ascertained in a Bill of Rights, previous to the ratification of any constitution.
"7. That a government which is so constituted, that it cannot afford a degree of political liberty nearly equal to all it's members, is not founded upon principles of freedom and justice, and where any member enjoys no degree of political liberty, the government, so far as it respects him, is a tyranny, for he is controuled by laws to which he has never consented.
"8. That the legislative power of a state hath no authority to controul the natural rights of any of it's members, unless the good of the whole requires it.
"9. That a majority of the state is the only judge when the general good does require it."
"11. That in a free government, a law affecting the person and property of it's members, is not valid, unless it has the consent of a majority of the members, which majority should also include those, who own a major part of the property in the state." (Emphasis mine. Bernard Schwartz and Edwin D. Webb, The Roots of the Bill of Rights, Vol 2., Chelsea House Publishers, c1990, pp. 344-354.)
Declared Justice Chase for the Court in Calder v. Bull, 3 U.S. 386 (1798)
"...I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded."
