USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 3 > Part 19
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"That the several towns and other bodies politic shall have the exclusive right of electing their public teachers;
"And all monies paid by the subject to the support of pub- lic worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends ; other- wise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said monies are raised.
"And every denomination of Christians, demeaning them- selves peaceably, and as good subjects of the Commonwealth, shall be equally under the protection of the law: And no subordination of any one sect or denomination to another shall ever be established by law."
In the address, the delegates, foreseeing the probability of opposition, tried to justify it and explain its purport. "In the third article," they said, "we have, with as much Precision as we were capable of, provided for the free exercise of the Rights of Conscience .... We are very sensible that our Constituents hold those Rights infinitely more valuable than all others; and we flatter ourselves, that while we have con- sidered Morality and the Public Worship of God, as impor- tant to the happiness of Society, we have sufficiently guarded the rights of Conscience from every possible infringement. This Article underwent long debates, ... and we feel our-
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selves peculiarly happy in being able to inform you, that though the debates were managed by persons of various de- nominations, it was finally agreed upon with much more Unanimity than usually takes place in disquisitions of this Nature."
THE RELIGIOUS ISSUE (1780)
To comprehend the effect of this Article requires a knowl- edge of the religious system of Massachusetts then in force. Under that system, every town was obliged to secure an "able, learned, orthodox" minister and provide him with a salary and meeting house. This meant that in 1780 every Massachu- setts town was required to have a Congregational Church. Where more than one church existed, the Congregational was always the oldest, and the courts held (Oaks v. Hill, 10 Pickering 333) that every citizen, unless he expressly joined some other church, belonged to the oldest religious society in his town. Hence the Congregational Church received the taxes of all persons except those who expressly joined some recognized dissenting church. The courts were reluctant to extend such exemptions, and construed them strictly.
Although neither the words "Orthodox" nor "Congrega- tional" were used in Article III, the effect of this article was to perpetuate this provincial system by incorporating it in the fundamental law and virtually to establish the Congrega- tional Church as the orthodox church of Massachusetts Unbelievers, non-church-goers, and dissenting minorities too small to maintain a minister, had to contribute to Congrega- tional worship. Every new denomination that entered the Commonwealth after 1780, notably the Universalists and Methodists, had to wage a long and expensive lawsuit to ob- tain recognition as a religious sect. Town treasurers refused to give regular dissenting ministers their share of the tax.
The provisions of the first four paragraphs of Article III in fact nullified the professions of the fifth paragraph. The latter clause, (which was not contained in the draft submitted to the Convention by the Committee ), although purporting to place all denominations upon an equal footing, was, in reality merely a gesture. As a matter of fact, all other denomina- tions were subordinated to the recognized Orthodox Church.
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QUESTION OF SECTS
QUESTION OF SECTS (1780)
Many of the towns protested. Ashfield declared that Ar- ticle III was "unconstitutional to human nature, and no Pre- cept in ye word of God to Support it." Middleborough stated it to be "unmeaning, or otherwise admits of Different mean- ings." It is "very ambiguously expressed," said Grafton. Raynham objected to it in the words: "It is our opinion that the Said Third Article in the Bill of Rights ought to be more explicit so that it may be Easily understood by all men. If not there will be Danger of Different Societies Quariling and Contending in the Law about their Rights which will Tend to the Destruction of Piety, Religion and Morality and Entirely Subvert the Intention of said Third Article." Granville ex- pressed itself: "True Religion has evidently declined and been corrupted by the interference of Statesmen and Poli- ticians." Joseph Hawley, a leader more tolerant in religious matters than most of the others, wrote that future laws on religion, "if made conformable to the article itself, will afford plenty of that glorious uncertainty, which is the source of the emoluments of the men of my profession."
A series of articles appeared in the press both opposing and defending Article III. The opposition was led by, though not confined to, the Baptists, and the leader of the Baptists was the Rev. Isaac Backus, of Middleborough. He became the principal exponent in Massachusetts of the separation of church and state. He was a prolific writer and exerted a wide influence in the community. Through his example the State Baptist Association issued an emphatic protest to the General Court.
An intense argument took place in the Boston Gazette be- tween two members of the Convention who signed themselves respectively "Philanthropos" and "Iraeneus". The former stoutly maintained that "civil government has absolutely no right to intervene in religious affairs, whether by defining or- thodoxy, punishing heresy, enforcing attendance at public worship, or taxing the citizens for its support." The latter, answering the "extemporaneous gabblings" of his opponent, retorted that the opposition was advocating "impiety, irreli- gion, and licentiousness", and was confined to "a certain junto, composed of disguised Tories, British emissaries, profane
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and licentious Deists, avaricious Wordlings, disaffected Sec- taries, and furious blind bigots."
A more rational and convincing argument in favor of Ar- ticle III, which apparently influenced a majority of the Towns to support it, was contained in the report of a committee of Boston citizens which was adopted by a majority vote, al- though a minority report was signed by 140 voters and pub- lished in the Boston Gazette. The Boston Committee report stated: "Though we are not supporting the Kingdom of Christ, may we not be permitted to assist civil society by an adoption, and by the teaching of the best act of Morals that were ever offered to the World? ... Suspend all provision for the inculcation of morality, religion and Piety, and con- fusion and every evil work may be justly dreaded."
RELIGIOUS QUALIFICATION FOR OFFICE (1780)
The religious question was raised again in connection with the consideration of the provisions in the Constitution relating to qualifications for office. Chapter II, Section 1, Article II of the Frame of Government declares that no person shall be eligible to the office of Governor "unless he shall declare him- self to be of the Christian religion." And Chapter VI, Article I, provides that any person chosen Governor, Lieutenant-Gov- ernor, Councillor, Senator or Representative shall declare that he believes "The Christian religion", and shall take oath "that no foreign Prince, Person, Prelate, State or Potentate, hath, or ought to have, any jurisdiction, superiority, pre-emi- nence, authority, dispensing or other power, in any matter, civil, ecclesiastical or spiritual, within this Commonwealth." This oath was directed against the extreme Catholics. John Adams, it has been said, objected to it. But, as stated in the Address, the delegates considered themselves "obliged by a Solemn Test, to provide for the exclusion of those from offices who will not disclaim those Principles of Spiritual Jurisdic- tion which Roman Catholicks in some Countries have held, and which are subversive of a free Government established by the People." Among many towns, however, further protec- tion was demanded. These voted to insert the word "Protes- tant" before the word "Christian" wherever used in the Con- stitution. Roxbury declared that such insertion "seems to
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us necessary to secure the peace and tranquillity of the State, as well as to the promotion of that Religion which our vener- able Forefathers suffered everything but death, to establish."
PROVISIONS FOR PERSONAL LIBERTY
With the exception of Article III, practically the only pro- vision in the Declaration of Rights to which any substantial objection was made were Article XXIX, relating to the tenure of judges, and Article XVI on the freedom of the press. Ar- ticle XXIX stipulates that "the judges of the Supreme Judi- cial Court should hold their offices as long as they behave themselves well." In the Adams draft all judges were in- cluded, but the Convention restricted this provision to the judges of the Supreme Judicial Court. Some of the towns, particularly in the western part of the State, even objected to this, believing that it would make these judges too independ- ent. These towns were, however, in a small minority.
An inclination appeared on the part of some communities, notably Boston, to enlarge Article XVI so as to permit unre- strained expression in public speech, but it came to nothing. The Article was confined to the liberty of the press.
THE SEPARATION OF POWERS (1780)
Article XXXI of the Adams draft, which provided merely that "the judicial department of the State ought to be sepa- rate from, and independent of, the legislative and executive powers," was struck out by the Convention, and Article XXX, which was substituted therefore, reads: "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." Here is a comprehensive declaration of the principle of the com- plete separation of the powers of government, the lack of which had been so objectionable in the draft of the Constitu- tion submitted in 1778.
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In the Address is emphasized the doctrine of checks and balances. "A power without any Restraint is Tyranny. The Powers of Government must then be balanced. . . . Those who are to be invested with the Administration, should have such Powers given to them, as are requisite to render them useful in their respective Places; and such checks should be added to every Branch of Power as may be sufficient to pre- vent its becoming formidable and injurious to the Common- wealth." Hence the Constitution provided for a strong exec- utive, a two-chamber legislature, and an independent judiciary.
Some objections were made to the system proposed. The people were accustomed to a supreme legislature; from their experience with royal executives they naturally distrusted that branch of the government. In the other states which had adopted constitutions, the governor was (in all except three), elected by the legislature, limited in his functions by the coun- cil or other similar body, and had little appointive power and no veto whatever. In Massachusetts, the leaders early ap- preciated that "the executive power ought to be conducted with vigour and dispatch. It should be able to execute the laws without opposition, and to controul 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."
In Massachusetts, therefore, the Governor's position, in comparison with other states, was made strong and independ- ent. No constitutional restriction prevented reelection; in fact, Hancock and Strong were later both reelected ten times. John Adams, Parsons, Lowell, and others feared the excesses of democracy. They saw the danger of unrestrained democ- racy. They wanted to guard against "that lust of domination, which in some degree influences all men, and all bodies of men." They were trying to establish an efficient and a work- able government, sufficiently balanced to get results, and, at the same time, sufficiently curbed to prevent abuses.
Practically they adopted the principle of the "Essex Result" in establishing two branches of the legislature. "The House of Representatives", they said, "is intended as the Represen- tative of the Persons, and the Senate of the property of the
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Commonwealth .... These are to sit in separate Bodies, each having a Negative upon the Acts of the other. This Power of a Negative in each must ever be necessary; for all Bodies of Men, assembled upon the same occasion and united by one common Interest of Rank, Honor, or Estate, are liable, like an individual, to mistake, bias and prejudice." John Adams and "the Essex Junto" (Parsons, Lowell, Jackson and Cabot) were able to offset the advocates of a unicameral legis- lature, of whom at first there were a considerable number. John Adams himself wrote on April 12, 1809: "Lieutenant Governor Cushing was avowedly for a single assembly, like Pennsylvania. Samuel Adams was of the same mind. Mr. Hancock kept aloof, in order to be governor. In short, I had at first no support but from the Essex junto."
THE EXECUTIVE VETO (1780)
A veto power over legislation was given to the Governor, "not only to preserve the Laws from being unsystematical and inaccurate, but that a due balance may be preserved in the three capital powers of Government. ... The History of the rise and fall of the Empires of the World affords us ample proof, that when the same Man or Body of Men enact, inter- pret and execute the Laws, property becomes too precarious to be valuable, and a People are finally borne down with the force of corruption resulting from the Union of those Powers."
In the Adams draft, an absolute veto was given the Gov- ernor without any provision for the Legislature to override it. As Adams wrote to a friend several years later: The Con- vention "struck out two things, to my sorrow. One was an unqualified negative to the governor." But the veto power was considered dangerous; in some states there was no such power whatever. It was therefore qualified by allowing two thirds of the legislature to pass laws, notwithstanding the ob- jections of the Governor.
The separation of the powers of government was carried out more boldly and logically in the Massachusetts Constitu- tion than in any previous form of government. This did not mean, however, that the three departments of government should not have partial control over the acts of each other.
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TRIUMPH OF SEPARATION OF POWERS
For instance, in commenting upon Article XXX of the Massachusetts Declaration of Rights, Madison says later in the Federalist: "This declaration corresponds precisely with the doctrine of Montesquieu, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exer- cising the powers of another department. In the very Con- stitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The mem- bers of the judiciary department, again, are appointable by the executive department, and removable by the same author- ity on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department." This last sentence had refer- ence to Chapter II, Section IV of the Constitution of 1780 (since amended), by which the two houses of the legislature in joint session were empowered to elect the secretary of the Commonwealth, the treasurer, the commissary-general, nota- ries public, and naval officers.
THE SENATE AND COUNCIL (1780)
The Council, also, was elected by the two branches of the legislature in joint session, nine of them chosen annually "from among the persons returned for councillors and senators." The Council was "for advising the Governor in the executive part of the government." In other words, the people elected annually "forty persons to be councillors and senators," nine of these were subsequently chosen councillors by the Senate and the House together, and the remainder constituted the Senate. This system was a compromise between the old Prov- ince system and the new principle of the separation of powers. Under the former, the General Court annually chose a Council of 28, to act both as the upper house of the legislature and executive council as well. Under the new system, the coun- cillors, elected by the people either as councillors or senators, became members of the executive branch of the government
APPORTIONMENT OF REPRESENTATIVES 203
only by the subsequent designation as such by the full legisla- ture. The functions of the old Provincial Council were thus divided, the executive functions being assigned to the Gover- nor's Council, and the legislative functions to the Senate. Only three other States in the Union have a Governor's Council.
The Senate was, as the Address pointed out, the body which was to represent property. It avowedly carried out John Adams's doctrine of class representation. He firmly be- lieved in the necessity of protecting property against the as- saults of democracy. Thus the members of the upper house were apportioned to districts according to taxable property, but with the limitations that there should never be less than thirteen districts, and that no district should ever be entitled to more than six Senators. The original districts corresponded to the several counties of the Commonwealth; and the two largest counties (Suffolk and Essex) each had six Senators.
APPORTIONMENT OF REPRESENTATIVES (1780-1857)
The lower house, in distinction, was intended as "a repre- sentation of the people, annually elected, and founded upon the principle of equality." The difficulty, however, was to apply this principle of equality. The smallest town claimed the right to at least one representative, a right which had been recognized by law since 1692; and the largest wanted representation proportionate to its size. It was impossible to reconcile these conflicting points of view without provid- ing for a house of enormous proportions. The solution agreed upon was to give every town "containing one hundred and fifty rateable polls," one representative, and one more for every two hundred and twenty-five additional "rateable polls ;" provided, however, that every town already incorporated, no matter how small, was entitled to one representative. There- after no town was to be incorporated until it had at least one hundred and fifty "rateable polls." On this basis, if the total number provided for had attended, the lower house would have been too unwieldy for all practical purposes. At the next session ofter the act of 1811 had gone into effect for paying representatives for their services out of the public treasury, the number of members, larger than ever before,
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was over seven hundred. Clearly, the system adopted proved unworkable and it had to be amended.
It was not, at the time, satisfactory to many towns, especially in the western part of the state. The farming dis- tricts wanted a stronger voice to oppose the fast-growing ur- ban and mercantile centers of the east, particularly Boston. Some towns wanted to revert to the old law of 1692 which restricted Boston to four representatives, although that law had been amended in 1776 to give towns an additional repre- sentative for every one hundred voters over two hundred and twenty. Other communities were more reasonable, and sug- gestions were made which formed the basis of the system adopted in later amendments to the Constitution. Mendon, Spencer, Sutton, and Bridgewater were wise enough to sug- gest the scheme which was incorporated in the Constitution by amendment in 1857 and is in force today,-that of divid- ing the whole state into representative districts of equal vot- ing strength. Worcester rejected the article unanimously, fifty-seven being present. It has been said that "the return of Worcester gives the deliberate voice of western Massa- chusetts on this question of representation." The West was jealous of the East, and fearful lest the more populous towns, having it in their power to constitute a quorum, which was sixty, and being so near at hand that they could attend easily, should "in a thin house" pass laws "which would not be cal- culated for the General Good." The disregard of the feeling against this provision, was one of the causes of Shays's Rebellion.
PROPERTY QUALIFICATIONS FOR OFFICE (1780)
The property qualifications for the offices of Senator and Representative were different, but the franchise for electors for both offices was the same. No person could be a Senator who did not own a freehold estate within the state of the value of at least three hundred pounds, or an estate, either personal or mixed, of at least six hundred pounds. To be a represen- tative one was required to be the owner of a freehold estate of one hundred pounds in the town he represented, or any ratable estate to the value of two hundred pounds.
The Governor, senators and representatives were chosen by the male inhabitants of the respective districts, being
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twenty-one years of age, and owning within the Common- wealth a freehold estate of the annual income of three pounds, or any estate of the value of sixty pounds. This property qualification was defended in the Address by an appeal to those of good repute who were twenty-one and had as yet no property to suspend their right to vote for a short time rather than turn over their privileges to "those whose Idleness of Life and profligacy of manners will forever bar them from acquiring and possessing Property."
Some objection was urged against these provisions on the part of a few towns; but there was more objection to apply- ing the property qualification to voters for members of the lower house. If the House represented the people, was the argument, why disfranchise many who were liable to taxa- tion? Boys sixteen years of age were "rateable polls," and yet they were to be given no voice in the selection of their representatives. "These poor polls ... feel and own the force of the argument for property's having great weight in the legislature, because property ever was, and ever will be, the subject of legislation and taxation. But pray Gentlemen, shall not the polls, the persons of the state, have some weight also, who will also always be the subjects of legislation and taxation? Are life, members, and liberty of no value or con- sideration?" Dorchester voted unanimously that suffrage for a representative be granted to all males twenty-one years of age and over. One or more towns suggested requiring only a certificate of "sober Life and Conversation."
JUDICIAL TENURE (1780)
Chapter III of the Frame of Government concerns the "Judiciary Power." In Article XXIX of the Declaration of Rights, great stress is laid on the importance of the independ- ence of the judiciary. "It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit." All judicial officers, there- fore, shall hold their offices during good behavior, excepting
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such as are otherwise provided for in the Constitution, "pro- vided nevertheless, the governor, with consent of the council, may remove them upon the address of both houses of the legislature."
This method of removal of judges, though long existent in England, is unusual in the United States. It is an impor- tant power given to the legislature in addition to the general power of impeachment of all state officers by the House and determination thereof by the Senate. Among the States that provide for removal by address, the greater number stipulate that a two-thirds vote of both houses is necessary; in Massa- chusetts a bare majority of each house is sufficient. In most States the accused must be notified, the cause of the proposed removal stated, and a hearing given; but in Massachusetts no reason need be assigned and no hearing is necessary. As Chief Justice Shaw said in addressing the Convention of 1820: "By the Constitution as it now stands, the judges hold their offices at the will of the majority of the Legislature."
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