Read the official version as compiled and published by the State of Massachusetts. Read page after page as the advocacy for abolition pulses and reverberates throughout the deliberations.
Submitted to the Constitutional Convention by the Commission to Compile Information and Date for the use of the Constitutional Convention
Boston, Wright & Potter Printing Company, State Printers, 35 Derne Street, 1917
12 IV. COLONY AND STATE OF MASSACHUSETTS BAY (PROVINCIAL CONGRESS AND PROVINCE CHARTER RESUMED), 1774-1780.
The "five intolerable acts" of Parliament of 1774 included an act amending the Province charter by providing that henceforth the Council, instead of being elected by the General Court, should be appointed by the King's writ of mandamus. To this the people refused to submit. The last regular provincial General Court was dissolved by Governor Gage on June 17, 1774. During the summer the people broke up the courts and held county conventions, which resolved to ignore the "mandamus council," treat the act in question as unconstitutional and void, and send delegates to the Continental Congress at Philadelphia and to a Provincial Congress at Concord.
On September 1, 1774, Governor Gage issued writs for the election of a new General Court, to meet at Salem on October 5. On September 28, owing to the "many tumults and disorders," he cancelled the election. Ninety Representatives-elect met in spite of him at the appointed time and place, declared the Governor's action unconstitutional, resolved themselves into a Provincial Congress on October 7, and adjourned to Concord. There they were joined on October 11 by the delegates already elected to the Provincial Congress by order of the county conventions.
During the next nine months Massachusetts was governed by three successive Provincial Congresses. These were simply revolutionary conventions, — State editions of the Continental Congress at Philadelphia. Each town sent as many delegates as it liked. John Hancock was president of the First and Second Congresses, and Joseph Warren, who fell at Bunker Hill, was president of the Third Congress. While Governor Gage, in Boston, was attempting to suppress rebellion with the aid of his "mandamus council" and the redcoats, the Provincial Congress, meeting at Concord, Cambridge, and Watertown, governed the Province in revolution. On May 5, 1775, after Concord fight, it declared General Gage no longer the lawful Governor, and on June 20 it ordered the election of a regular General Court under the Province charter.
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The House of Representatives thus elected met at Watertown on July 19, 1775, the Third Provincial Congress dissolving the same day. Two days later the House elected a Council of twenty-eight; and the full General Court thus formed resolved that "whereas the late Governor, Lieutenant-Governor or Deputy Governor of the Province have absented themselves, and have refused to govern the Province according to the Charter," the executive power, according to said charter, devolves upon the Council. The Province charter, amended by this legal fiction, was the constitution of the Colony and State of Massachusetts Bay from July 28, 1775, to October 25, 1780.
The old Province and regal forms were retained until June 1, 1776, when writs were first issued in the name of the "Government and People of the Massachusetts-Bay." "Colony of the Massachusetts-Bay" was the official title of the government until the Declaration of Independence was proclaimed from the balcony of the old State House, on July 18, 1776. For the next four years the title, with variations, was "State of Massachusetts-Bay (in New England)." The General Court was usually styled the General Assembly at this period.
This decapitated and republicanized royal charter did not make a successful constitution. A Council of twenty-eight members, fifteen of whom made the quorum, was too slow and unwieldy an executive, especially in war time. It was too fond of appointing its own members to salaried positions. Samuel Freeman, for instance, was at the same time member of the House from Falmouth (Portland), clerk of the House, register of probate, clerk of the superior court, clerk of the sessions, and justice of the peace. The judicial system set up by the General Court was so cumbrous and expensive that the towns of Berkshire County refused to recognize it, setting up local courts of their own. The towns, in fact, were the most powerful part of the government of Massachusetts during the Revolution. They held county and other conventions without any authority from the General Court, gave their representatives precise instructions, and insisted that many important matters, including all constitutional questions, should be referred back to them.
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V. THE MOVEMENT FOR A STATE CONSTITUTION, 1776-1780.
I. PRELIMINARIES.
Before the resumed Province charter had been in operation six months, the demand was made for a new State constitution. This movement originated in Berkshire County, which, on account of its poverty and remoteness, was more alive to the defects of the Provincial system than any other section of the State. It was led by the Rev. Thomas Allen of Pittsfield, a fighting parson who accompanied his flock to Bennington, and himself fired the first shot of the battle. For his straight thinking on constitutional questions, and his great influence on the movement, Thomas Allen deserves a high place in the history of Massachusetts.
"A memorial to the General Court from the town of Pittsfield," on May 29, 1776, insisted "that the people are the fountain of power;" that the old charter and compacts were dissolved by the war; and that the General Court had no right to impose any constitution over the people, much less the Province charter. Pittsfield requested the General Court to frame "a fundamental constitution as the basis and frame-work of legislation," and refer it to the people for their approbation; for only the consent of a majority can "give life and being to it." When we remember how slowly the modern idea of constitutional law developed, and that all the American State constitutions of 1776 were framed by legislative bodies and put in force without popular ratification, we can appreciate the forward-looking character of this Pittsfield memorial.
The Declaration of Independence so strengthened the constitutional movement that on September 17, 1776, the House requested the towns to vote whether or not they would grant it permission to go into convention with the Council to frame a constitution; and whether they wished it made public for the "inspection and perusal of the inhabitants before the ratification thereof by the Assembly." This was the first of eight occasions in the history of Massachusetts in which the people have been asked to decide for or against a constitutional convention.
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Less than half the towns voted. Most of those that did were willing that the General Court should frame a constitution, provided it were made public not only for inspection and perusal but for ratification. At least two towns — Concord on October 21, 1776, and Acton on November 4 — laid down the principle that a constitution should be framed not by a legislature but by a convention of delegates elected for that purpose alone. Concord made a good argument for the principle,1 and further specified that the delegates should be chosen by "the Inhabitants of the Respective Towns in this State being free & of twenty one years of age, and upwards." These are the earliest suggestions as yet discovered in American history of the perfected constitutional convention.
The House committee appointed to canvass these returns and bring in a resolve was so impressed by this suggestion that in January, 1777, it recommended a constitutional convention as subsequently called in 1779. But the General Court did not care to let the task out of its own hands. By a resolve of May 5, 1777, it requested the towns to instruct their representatives to the next General Court to form with the Council a constitutional convention. Not all the towns gave this permission. Boston, in particular, ordered its representatives to oppose a legislative convention. The General Court, it explained, would never "prevent the lately too prevalent custom of accumulating offices in one person," and forbid its own members "from accepting any." The General Court ignored these protests, resolved itself into a constitutional convention on June 17, 1777, appointed a joint committee to draft a constitution, and again went about its legislative business. The committee did not report until December. In January, 1778, House and Council again went into convention to discuss and amend the committee's report, and on February 28 the completed constitution was accepted, and submitted to universal suffrage for adoption or rejection as a whole by a two-thirds majority. It was the first American State constitution to be formally submitted for popular action.
1 A part of the resolution adopted by the people of Concord is incorrectly printed in The Debates of the Convention of 1853, I, 823. The frontispiece of this volume is a reproduction of the record of the Concord town meeting. The original is in the State Archives of Massachusetts.
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2. THE CONSTITUTION OF 1778, AND THE ESSEX RESULT.
The Constitution of February 28, 1778, was so imperfect that the Rev. William Gordon of Roxbury, chaplain of the House, publicly asserted that it had been framed with the express intention of having it rejected. (Shortly afterward the House dispensed with Dr. Gordon's services.) There was no Bill of Rights, which omission alone was enough to insure its rejection. There was a legislature of two branches, but the Senate was elected indirectly, and acted as the Governor's Council as well as upper House. The Governor had no veto power, and all his acts were limited by the advice and consent of the Senate, in which he had a seat and vote. The whole document was poorly arranged and loosely drafted. As Boston predicted, members of the Legislature were not forbidden to hold offices of their own creation. In one respect, however, the Constitution of 1778 was more liberal than that of 1780; there was no property qualification for the electors of Representatives, and the Senators were apportioned according to population, not taxable property.
The Constitution submitted to the people of Massachusetts in 1778 was rejected by the emphatic vote of 2,083 yeas to 9,972 nays. This decision was undoubtedly influenced by a pamphlet which appeared in April, generally called the Essex Result, as it was adopted by a convention of delegates from the towns of Essex County. The Essex Result was drafted by a twenty-seven year old lawyer of Newburyport, who subsequently became Chief Justice Parsons. He not only points out the defects in the Constitution of 1778 but undertakes to ascertain "the true principles of government" upon which he believed the Constitution of Massachusetts should be founded. Following Locke and the eighteenth-century philosophers, Parsons starts with the theory of popular sovereignty and natural rights. Some, like the rights of conscience, are inalienable, and are no proper objects for governmental action. These should be defined and retained in a Bill of Rights. Other rights must be given up to the supreme power of the State in order to enable it to protect the life, liberty, and property of the citizen. The great problem is to frame this government.
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"Let the supreme power be so defined and balanced that the laws may have in view the interest of the whole; let them be wisely and consistently framed for that end, and firmly adhered to; and let them be executed with vigor and dispatch."
The last clause strikes a new note in American political theory. Americans, so far, had been more concerned with preventing tyranny than with promoting efficiency. Owing to their experience with royal governors and judges, they were suspicious of the executive and judicial branches. Virginia had intrusted her supreme power to the Legislature, which elected and largely controlled the Governor; Pennsylvania dispensed with the Governor and the upper House. But many of the leading thinkers among the patriots, notably John Adams, Thomas Jefferson, and James Madison, believed that the supreme power should be divided into a legislative, an executive, and a judicial power, each to be exercised by a different set of men, and all three co-ordinated by a series of checks and balances. Theophi-lus Parsons carried this doctrine a step further in the Essex Result. "The legislative power must not be trusted with one assembly. A single assembly is frequently influenced by the vices, follies, passions, and prejudices of an individual." It should be divided into two branches, one to represent the people at large, among whom "we shall find the greatest share of political honesty, probity and a regard to the interest of the whole;" the other branch to represent the property of the State, and to give a share in government to "gentlemen of education, fortune and leisure," among whom "we shall find the largest number of men, possessed of wisdom, learning, and a firmness and consistency of character." If each House has an equal voice, no law can be passed without the consent of a majority of "those members who hold a major part of the property," as well as a majority of the persons in the State. A Senate, furthermore, will be able to revise "crude and hasty determinations of the House."
Vigor and dispatch are the chief qualities to be aimed at for the executive. "It should be able to execute the laws without opposition, and to control all the turbulent spirits in the state, who should infringe them. If the laws are not obeyed, the legislative power is vain, and the judicial is mere pageantry."
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Let the executive power, then, be vested in one Governor, to be elected by all the people of the State. Give him a complete negative on all laws. He should have a "privy council" to advise with, not chosen by himself but by the House out of the Senate. As this will be a sufficient check on him, he should have a permanent fixed salary, and not be dependent, like the old royal Governors, upon the bounty of the Legislature.
The judges also should be appointed during good behavior and have independent salaries. And as legislative appointment of judges has already proved unsuccessful, let them be appointed by the executive, but removable for misbehavior by the Legislature.
In descending from the general to the particular, the Essex Result was not so apt, proposing a complicated system of indirect elections through county conventions. But the pamphlet is nevertheless an interesting expression of those principles upon which the Constitutions of Massachusetts and the United States were founded, and an early product of the school of political thought that tamed and curbed the radical forces let loose by the American Revolution.
3. THE CONSTITUTIONAL CONVENTION OF 1779-1780.
The Essex Result wished the framing of a constitution to be postponed until the end of the war, and did nothing to promote the idea of the special constitutional convention; that was purely a popular movement. The General Court, which had voted down the idea two years before, was sufficiently chastened by the recent rejection to take it up again in the spring of 1779. A resolve of February 19 requested the people to decide in their spring town meetings whether they would empower their representatives to call a convention for the sole purpose of framing a constitution. The result was 6,612 yeas and 2,639 nays. Essex, Barnstable, and the Maine counties cast a light and unfavorable vote, while Boston and the three western counties of Worcester, Hampshire, and Berkshire cast a heavy and almost unanimously favorable vote.1 The General Court then ordered the towns and plantations to elect as many delegates to the Convention as they
1 Franklin and Hampden counties were not incorporated until 1811 and 1812.
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were entitled to send representatives, and expressly provided that every resident freeman twenty-one years of age should vote. As a property qualification was then required for voting for representatives, the Convention rested on a wider electorate than the existing State government. It derived all its authority from the people, in the widest contemporary political sense of that word; and to the people its work was submitted. It cut loose completely from the State government, even to the extent of refusing to apply to it for pay and mileage.
This Convention of 1779-1780 had the greatest task of any constitutional convention in the history of Massachusetts, and performed it under peculiarly difficult circumstances. The period of its sessions, from September 1, 1779, to June 16, 1780, was perhaps the darkest of the Revolutionary War. A joint naval and military expedition, brought together by the State at great cost to dislodge the enemy from Maine, had ended in complete disaster. Sir Henry Clinton was conquering the Carolinas. Our French allies had not yet sent Rochambeau's army or De Grasse's navy. Washington was stalemated on the Hudson, his army undermined by sickness and desertion. State and nation were on the verge of bankruptcy. The Tories were taking heart, and the neutrals going over to their side. Yet at this crisis the State was able to assemble a Convention of 312 members, which, judged by its results, must unquestionably be called the greatest in its history.
Boston sent James Bowdoin (who was elected president of the Convention), Samuel Adams, John Hancock, Samuel Allyne Otis, and John Lowell the elder; Roxbury sent Increase Sumner; Braintree, its favorite son, John Adams; Salem, John Pickering, William Pickman, and Henry Higginson; Newburyport, Jonathan Jackson, Nathaniel Tracy, and the author of the Easex Result; Beverly, George Cabot; Groton, James Sullivan; Worcester, Levi Lincoln the elder; Springfield, Luke Bliss and William Pyncheon; Northampton, Caleb Strong, who holds the record for length of term as Governor of the Commonwealth; Scituate, Judge William Cushing; Taunton, Robert Treat Paine the signer; York, Judge David Sewall; and Brimfield, Timothy Danielson. Hardly an eminent patriot in the State, who was not serving in some other civil or military capacity, was omitted.
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At its first session, in the Meeting House in Cambridge, the Convention organized, adopted a set of ten rules and orders, elected a committee of thirty to prepare a draft, spent a day in "a general and free conversation" on the Constitution, "which lasted till sunset," and adjourned on September 7.
The committee of thirty met at the "New Court House" in Boston, on the site of the present City Hall. It delegated its duties to a subcommittee consisting of James Bowdoin and the two Adamses; and that committee left the entire task to John Adams. No better selection could have been made. John Adams was in his forty-fifth year, at the height of his powers, and one of the highest authorities on political science in America. Long a student of government, his advice had been sought by the framers of the early constitutions in the southern States. He was highly equipped as a lawyer and a practical politician. As a patriot leader in the provincial government and the Continental Congress, and as a minister to France, his political experience was extensive. It was the task of John Adams to construct a government on the ruins of what his cousin Samuel Adams had done so much to destroy.
The Adams draft, with one or two additions by the larger committee, was ready for the Convention at the beginning of its second session, on October 28, 1779. This entire session was devoted to the Declaration of Rights. Attendance fell off to such an extent that on November 11, when this first part of the Constitution was completed, the Convention adjourned to January 5, 1780. This long recess did not promote better attendance, for in the meantime the hard winter of 1780, the last really "old-fashioned winter," set in. Boston Harbor was frozen up to Nantasket Roads, and the snow lay so deep in the interior that travel was impossible save by snowshoes. Oldest inhabitants could remember nothing like it since 1717, and its equal has not been known since. The result was that the third session, at the Representatives' Chamber in the Old State House, was unable to transact any business until January 27, when sixty members were present, and the attendance never rose above eighty-two. Yet this was the most important session of the Convention. Almost every article of the John Adams draft of the Frame of Government was committed, debated, and
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polished into its final form. On March 2 the Convention again adjourned, submitting the result of its labors to the people in a printed pamphlet, together with an address recommending its acceptance.
4. THE RATIFICATION.
The mode of ratification adopted by the Convention was peculiar. Profiting by the experience of 1778, it did not submit the Constitution as a whole to popular vote. Instead, it asked the adult freemen to convene in their town meetings to consider and debate the Constitution clause by clause, to point out objections, if any, to particular articles, and to send in their returns to the secretary of the Convention, with the yeas and nays on every question. The people were then asked to empower the Convention at an adjourned session on June 5 to ratify and declare the Constitution in force if two-thirds of the voters were in favor of it, or, if not, to alter it in accordance with the popular will as expressed in the returns, and ratify it as thus amended. It was now almost four years since the machinery of constitution making had been set in motion.
About 16,000 people out of a total population of 363,000 voted on the Constitution. This was a larger vote than was cast for Governor during the next six years. The town meetings freely accepted the invitation to criticise the Constitution; and their returns are a remarkable testimony to the political wisdom of the plain people of that day. A few objections were grotesque, and certain proposals were reactionary, but many were subsequently adopted as amendments to the Constitution.
On June 5 the Convention convened for its fourth and last session at the old Brattle Street Church in Boston. It had previously invited the towns to replace their delegates by new members if they wished, but only a few did so. A committee was appointed to canvass the returns and report the result to the Convention. This committee adopted a system of tabulation which to-day would be called political jugglery. The towns had not voted on the Constitution as a whole, but article by article; and in many cases they proposed a substitute for an article they objected to, and voted on that instead of on the original. These votes on amended articles were either thrown out or
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counted as if cast for the original article. Hence it was made to appear that every article of the Constitution had well over a two-thirds majority, although a fair tabulation would have shown only a bare majority for at least two.1 Doubtless the Convention felt justified in this rather questionable work by the imperious necessity of obtaining the adoption of the Constitution, for in some parts of the State the cry "No Constitution, No Law," was being raised to excuse men from paying taxes or doing military service. On June 15 the Convention voted that the people have accepted the Constitution "as it stands in the printed form." The next day it provided for the first election of Governor and General Court, and closed "with thanksgiving and prayer." On October 25, 1780, John Hancock was inaugurated the first Governor of the Commonwealth of Massachusetts.
VI.
CONSTITUTIONAL DEVELOPMENT IN THE COMMONWEALTH OF MASSACHUSETTS, 1780-1915.
1. THE CONSTITUTION OF 1780.
John Adams was a conservative, in the best sense of the word. He believed in preserving old institutions (like annual elections) that had proved their worth, in discarding others (like a dependent judiciary) that had not, and creating new ones (like the constitutional convention) to meet new needs. His plan was largely that of the Essex Result, which in turn was doubtless influenced by his own writings on government. The materials he chose from the old colonial and provincial structures, from concrete experiences in self-government for a century and a half, and from the constitutions of sister States.
The Preamble, a new feature in constitutions, is Locke and Rousseau epitomized. The Declaration of Rights is derived from the Bills of Rights of other constitutions, from the colonists' own experience with governmental tyranny, and from sources as remote as Magna Carta.2 It was more nearly com-
1 Proceedings of the Massachusetts Historical Society, May, 1917.
2 Article XI is an expansion of Magna Carta, section 40, and the third sentence of Article XII is almost a literal translation of Magna Carta, section 39.
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plete than any of its predecessors. Fourteen of the thirty articles are almost identical with the Pennsylvania Declaration, and many of these were taken from the Virginia Bill of Rights of 1776. Others are found in the early constitutions of Maryland, North Carolina, and Delaware.
Three years later, Article I was held by the Supreme Judicial Court, all the judges of which had been members of the Convention, to abolish slavery in Massachusetts. It is doubtful whether it had been inserted for that purpose. Most of the other articles were designed to protect the civil rights of the citizens. Articles XIV and XXIV, against general warrants and ex post facto laws, were suggested by the provincial experience with writs of assistance and parliamentary legislation. Subsequent constitutional conventions may be said to be based on Article VII. In John Adams's original draft, Article XVI protected liberty of speech as well as the press, but the Convention amended it.
Article XXIX embodied one of John Adams's conceptions, — the preservation of impartial justice by a judiciary appointed during good behavior and assured of a fixed salary. The provincial judiciary had been most susceptible to political pressure by being appointed during the King's pleasure, and having its salaries annually granted (or withheld) by the General Court.
Article XXX states the central principle of the theory of separation of powers, — that the three branches of government be exercised by a different set of men. Each branch of the government was "balanced" and "checked" by the other two. The supreme power, the people, checked all three through the Declaration of Rights.
"In studying the relations existing between church and State under the revolutionary constitutions," writes Dr. William C. Webster, "one is impressed with the striking contrast between facts and pretensions."1 In almost every constitution were resonant and high-sounding clauses concerning the sacredness of religion and liberty, followed by others denying religious liberty to many creeds and sects. Our own was no exception. Article II of the Declaration of Rights guaranteed freedom of con-
1 Annals of American Academy of Political and Social Science, IX, 403.
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science, but Article III set up a quasi-religious establishment.1 It embodied in the fundamental law of the Commonwealth a church and State relationship formerly alterable by the Legislature. (The general principle was that every citizen of the Commonwealth must pay taxes towards the support of the Congregational church of the town, parish, or precinct where he resided and where his property was located. The fourth paragraph allowed non-Congregationalists to pay their religious tax to their own pastor; but the courts construed this clause so narrowly that in practice it exempted only members of an incorporated Episcopalian, Baptist, Methodist, or Universalist church. A member of one of these bodies who resided too far from a church of his denomination to attend it, or a non-churchgoer, had to help support a Congregational minister, — unless he lived in Boston, where the voluntary system prevailed. The article was distinctly the work orthodox Calvinist Congregationalists; it was intended (in spite of the fifth paragraph) to favor, and did favor, that sect. But the third paragraph had some unexpected results. Several of the towns and parishes, which thereby were given the exclusive right to elect their "public teachers" (ministers), were converted to Unitarianism, and settled Unitarian pastors over old Calvinist churches. The ratification of Article III was strongly opposed by Baptists and liberals of all shades. During the fifty-three years it was in force it was fruitful in lawsuits, bad feeling, and petty persecution.
The Constitution of Massachusetts was more liberal than many of the period in extending civil rights to Catholics. The oath of office, however, was intended, as the Convention's address explained, to exclude "those from Offices who will not disclaim these Principles of Spiritual Jurisdiction which Roman Catholicks in some countries have held." Several attempts were made in the Convention to qualify the word "Christian," wherever it appears in the Constitution, with the word "Protestant," but without success. John Adams regretted the Convention's
1 The system cannot be described in any one word or phrase. It was not an establishment like that of the Church of England in Ireland and South Carolina, because the Legislature had no power to regulate doctrine and force conformity; and because dissenters received a share of the taxes levied for religious purposes. The Congregational churches were favored rather than established in Massachusetts.
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insertion of the test oath, and Joseph Hawley, the patriot leader of western Massachusetts, refused an election to the State Senate because of it.
Chapter I, Section I, preserves the ancient title of the Legislature, the traditional commencement of the legislative year, and much phraseology of the Colony charter. In obedience to the principle of separation of powers, the legislative powers of the old provincial Council were assigned to a Senate, and its executive powers to a Governor's Council; but the common origin of the two was preserved in their election. By this clumsy method the whole General Court chose nine of the forty "councillors and senators" to be the Council; the remainder constituted the Senate. After political parties were formed it became a regular thing for a Councillor-elect to refuse to leave the Senate, fearing to cut down his party's majority; the vacancy in the Council would then (Chapter II, Section III, Article II) be filled from the people at large. The Governor, unlike the President of the United States, was not allowed to select his own Cabinet or Council, since the latter was created to check any tyrannizing tendencies that might crop out in the person of the chief magistrate. All the States but two had a Council. About thirty years later, John Adams wrote a friend that he was heartily sick of the Governor's Council, and in the Convention of 1820, old as he was, he made a speech in favor of its being elected by the people or abolished altogether.
"The House of Representatives is intended as the Representative of the Persons, and the Senate of the property of the Commonwealth," states the address of the Convention of 1780 to the people. Chapter I, Section II, Articles I and V, adopted the scheme of the Essex Result for making the Senate responsive to property interests, — an apportionment of the Senators according to the taxable property of senatorial districts, with a high property qualification for the office. The famous gerrymander of 1812 was a rearrangement of senatorial districts. Power to try impeachments presented by the lower House was also granted to the Senate.
In spite of the fact that the House was supposed to represent the people at large, Chapter I, Section III, Article IV, adopted
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a property qualification for voting for Representatives as well as Senators. The qualification was not large and in practice soon became a dead letter; but it was fifty per cent higher than that of the Province charter, and exceeded the requirements in every other State save South Carolina. A number of towns strenuously objected to it as unfair, undemocratic, and a violation of the principle of "no taxation without representation." It is difficult to understand why the manhood electorate that voted on the Constitution of 1780 consented to its own partial disenfranchisement by accepting this article.
The town of Newton, in its return on the Constitution, demanded the extension of the referendum to ordinary legislation. It proposed that upon application of the selectmen of seven towns, any act of the Legislature must be submitted to the town meetings, and might be repealed by a majority of those voting thereon.1
The distribution and numbers of Representatives in the lower House was an open constitutional question in Massachusetts until Amendment XXI was adopted, in 1857. The problem was a three-cornered one, — to reconcile the desire of the smallest towns to retain their traditional right to one Representative, and the claim of the urban centers to a proportional number, with the necessity of keeping the size of the House within reasonable bounds. John Adams at least satisfied town and country, which is more than can be said of the revisions between 1820 and 1853. But in 1812 the membership of the House exceeded 700, or 1 to every 1,000 people. A similar proportion would give us to-day a representative body 3,700 strong. The quorum for the House was so ridiculously small that it was no larger at times than the membership from Boston alone.
The property qualifications for office were higher than in any contemporary constitutions, except those of New Jersey, South Carolina, and Georgia.
Chapter II, Section I, on the Governor, created the most imposing and independent chief executive in the United States. In only three other States was the Governor elected by the people, and no other State granted him so great a power of appointment, or a share in legislation. John Adams and The-
1277 State Archives, 22.
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ophilus Parsons believed in an absolute veto; but the Convention amended John Adams's draft by allowing the Legislature to override the veto by a two-thirds majority. The absence of any constitutional restriction on the Governor's re-election was also unprecedented. Governors Hancock and Strong were both re-elected ten times.
Chapter III, on the judiciary, repeated the principle of fixed tenure and salary already stated in Article XXIX of the Declaration of Rights. The people have frustrated every effort of the politicians to revise this chapter, — only one amendment (XXXVII), and that of an interpretative character, ever having been ratified.
In Chapter III, Article I, it was provided that the judges may be removed at any time by the Governor, with the consent of the Council, on the address of both houses of the Legislature. This power of removal has been sparingly exercised, and only once — the anti-slavery case of Judge Edward G. Loring — abused.
Chapter V, Section I, destbed the rights and privileges of Harvard College. Section II, on "the encouragement of literature, etc.," was John Adams's favorite section. He wished Massachusetts to emulate foreign governments in the promotion of scientific research and scholarship. He was particularly anxious lest the "natural history" and "good humor" clauses be deleted by the Convention. The section indicates a much broader conception of governmental action than was common in the individualistic America of theft day.
Chapter VI, Article X, providing for the possible holding of a constitutional convention in 1795, secured a more narrow popular majority than any other article of the Constitution. There was a general feeling of its inadequacy.
The decennial valuation provided for in Chapter I, Section I, Article III, was a unique feature of the Massachusetts Convention.
Although faulty in many of its details, the Constitution of 1780 was the most successful and enduring State constitution of the Revolutionary period. The separation of powers was carried out more boldly and logically than ever before, and the drafting was greatly superior to the standard of the day. It has
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been possible, in the last one hundred and thirty-six years to change outgrown details while retaining the framework almost unimpaired. No other American constitution has had as long a life; no other written constitution now in force dates back so far.
The Constitution went into effect on October 25, 1780, when John Hancock was inaugurated the first Governor of the Commonwealth. At the foot of his proclamations appeared for the first time the now familiar formula, "God save the Commonwealth of Massachusetts."