USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 4 > Part 2
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Here we find recorded the transformation of Massachu- setts from a sparsely settled agricultural, trading, and mari- time community to that densely populated, urban and manufacturing State which required the adoption of the Forty-third Amendment, empowering the General Court to take and hold land and to build thereon for the purpose of providing homes for citizens and relieving the congestion of population. Here we see also the all-embracing change in the racial and religious complexion of the State from an almost
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2
GOVERNMENT AND CONSTITUTION
homogeneous Anglo-Saxon, Protestant community to its modern heterogeneity of race and creed. And always pre- dominant we find proof of a constant devotion to democracy. It is democracy which furnishes the keynote to all the con- stitutional changes of this period. The year 1820 found Massachusetts with an established church, a house of repre- sentatives which was not truly representative, a senate which the Constitution had expressly constituted the representative of property, an executive council elected by the legislature and not by the people directly-like the Senate, the repre- sentative of property-property qualifications as prerequisites to office holding and the franchise, religious tests and qualifi- cations exacted from officeholders, and a constitution contain- ing no provision for amendment or revision. The year 1917, however, found Massachusetts with machinery for amending and revising its Constitution incorporated into that document, the religious and property qualifications for the franchise and office holding removed, the council elected directly by the people, an equitable system of representation in both branches of the General Court fully established, property no longer the basis of representation in either senate or council, and the church disestablished.
These governmental and constitutional changes clearly indi- cate the nature of the constitutional growth and development of the Commonwealth during this period. In the ninety- seven years which began with the Convention of 1820 and ended with the opening of the Convention of 1917, Massa- chusetts was transformed from a partly democratic, but mostly aristocratic, republic into a fairly complete democracy.
DEMAND FOR REFORM (1795-1820)
In 1820 the Constitution of Massachusetts was in the same form as at the time of its adoption. Forty years of practice had seen no alterations and no revisions. Yet it could not be said that the document had been found fault-proof. On the contrary, the union of church and state embodied in the Third Article of the Declaration of Rights, the unwieldy size of the house, the system of senate apportionment, the property qualifications for the franchise and officeholding, and the
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CONVENTION OF 1820
religious requirements for office, had provoked widespread dissatisfaction and had produced a wholly natural demand for reform.
While the presence of this demand for reform was indis- putable, it was impossible to meet it because of the most glaring defect in the Constitution-the absence of machinery for its amendment or revision. In its original form, the Con- stitution contained no provision for its specific amendment. It merely provided that, after the expiration of fifteen years, the question of calling another convention for the purpose of revising the government should be submitted to the people. If two thirds of the qualified voters of the State, present and voting, voted for the proposition, the General Court was to issue its precepts for the election of delegates to meet in a constitutional convention. When the year 1795 had arrived, therefore, this provision of the Constitution was complied with. But, while the majority of the voters cast their bal- lots for the calling of a convention, the proposition failed to win the required two-thirds vote prescribed by the Con- stitution.
The failure of the special election of May 6, 1795, had prompted the house of representatives to resolve that, since the one opportunity for amending the Constitution had now been lost, the people should be asked to vote for a convention which should determine whether or not an article requiring a popular vote, similar to that of 1795, at stated intervals should be inserted into the Constitution. The refusal of the senate, the representative of property, to concur left the situa- tion unchanged: on the one hand was a determined demand for reform; on the other, lack of the necessary machinery.
CONVENTION OF 1820
In 1820 the separation of Maine provided the advocates of reform with their opportunity. The attainment of statehood by the northern part of the Commonwealth deprived the senate of nine senators and three senatorial districts, and left that body with only thirty-one members from ten districts. The proponents of reform forthwith claimed that this con- stituted a breach of the Constitution which could be remedied
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GOVERNMENT AND CONSTITUTION
only by the calling of a constitutional convention. So loudly did they clamor that the senate appointed a committee to in- vestigate the question; on the third Monday in August, in consequence of the report of this committee, a special election was held to decide the question of whether or not it was ex- pedient that delegates meet in convention to revise or alter the Constitution of the Commonwealth. The question having been answered in the affirmative by a vote of 11,756 to 6,593, on October 16 the election of delegates took place, and almost one month later these delegates gathered in formal assembly at Boston.
The group of men who convened at the State House on November 15, 1820, included some of the most renowned personages in the history of both the Nation and the State. Foremost was the venerable John Adams. Now an ex-Presi- dent of the United States and eighty-five years old, he had, forty years before, drafted the Constitution which this con- vention was to revise. Beside him stood Daniel Webster, then only thirty-eight years old, while nearby were Justice Story of the Supreme Court of the United States, Chief Justice Isaac Parker, Lemuel Shaw (he was later chief justice), Levi Lincoln, whom the future was to make governor, and several others, all outstanding at the time but less well remembered by posterity.
Paying deserved tribute to true greatness, the Convention elected Adams its president. Because of his advanced age he declined to serve, however, and the Chief Justice, Isaac Parker, was made presiding officer in his place. The formali- ties over, the convention got to work, and continued to work for fifty-five days, finally adjourning on January 9, 1821.
THE FIRST TEN AMENDMENTS (1821-1831)
The Convention of 1820 proved a success. Submitting fourteen propositions to the people, it succeeded in having nine accepted at once, while a tenth, though not adopted until ten years later, is also included among its achievements, despite the long interval between its recommendation and adoption.
These first ten amendments-the first nine of which were ratified April 9, 1821, and the tenth May 11, 1831-include
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CITIES
highly diversified changes. Thus, Article I deals with the governor's veto, and provides that, if the General Court ad- journs within five days after a bill or resolve has been laid before the governor and thereby prevents his veto, such bill or resolve is not to become law.
CITIES
Article II of the Amendments made possible the rise of cities in Massachusetts. Up to this time the chief unit of local government was the town. This situation was most inconvenient for the larger towns, for they had outgrown the town-meeting form of government. Despite the urgency of the situation, Article II of the amendments, which clothes the General Court with authority to grant a city charter to any town of 12,000 inhabitants, with the consent and upon the application of a majority of the inhabitants of the town, met with strenuous opposition and received a popular majority of a scant 62 votes. A year after its adoption, Boston, whose overwhelming vote had made possible the incorporation of this amendment into the Constitution, became Massachusetts's first city (1822).
PROPERTY QUALIFICATIONS
The Third Amendment was a concession to the popular dis- satisfaction with the franchise provisions of the Constitution. In its original form the Constitution made certain property qualifications a prerequisite to the right to vote. No man could vote for governor, senator, or representative unless he was the owner of a freehold estate within the Commonwealth of the annual income of three pounds, or of any estate of the value of sixty pounds. Although not large, this qualification was double that of the Province Charter and, next to that of South Carolina, the highest in the Union. It was ex- tremely unpopular. Article III of the Amendments, giving heed to the insistent demands for the alteration of this part of the Constitution, substituted for it the provision that every male citizen who paid a poll tax, except paupers and persons under guardianship, could vote for elective officers.
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GOVERNMENT AND CONSTITUTION
OFFICES AND OFFICERS
The Fourth Amendment represents an accretion to the guber- natorial powers which has proved permanent. Up to this time, notaries public were not appointed, but were elected by the General Court. This had not only proved a cumbersome method but, since the General Court was in session only part of the year, had often caused great delay. Article IV of the Amendments took from the General Court the election of these minor judicial officers and provided that notaries, like other judicial officers, should be appointed by the governor.
Amendment V represents the response of the convention to one of the most popular demands of the day-the demand that the right to vote for captains and subalterns of the militia be extended to all members of their respective companies, whether twenty-one years of age or not. This change had been re- quested by several towns in 1780, when the Constitution was submitted to the people for ratification; and it was obviously just, for those under twenty-one who perform military duty are as much interested in their commanding officers as those over twenty-one.
OATH OF OFFICE
Amendments VI and VII are of major significance. To qualify for office, under the Constitution in its original form, a man had to declare his belief in the Christian religion and, among several other things, to renounce foreign ecclesias- tical authority.
The required oath, which was intended to restrict the hold- ing of offices to Protestants only, had not been in John Adams's original draft of the Constitution, and its insertion into the final draft was contrary to Adams's wishes. The people now proceeded to retract this anti-Adams provision by ratifying and adopting the Sixth and Seventh Amendments, which swept all religious tests and qualifications out of the Consti- tution. Ever since 1821, therefore, the sole oath required by the Constitution has been a simple oath of allegiance to the Commonwealth of Massachusetts.
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DUAL OFFICES, ELECTIONS
DUAL OFFICES, ELECTIONS
The eighth of the Articles of Amendment provided against the holding of duplicate offices. Under its terms, when one accepts a Federal office, he automatically resigns his State office. Thus, no State judge or anyone holding an office in the United States government may at the same time hold the office of governor, lieutenant governor, or councillor, or sit in the House or Senate. Again, if a judge of any court in the State (except the court of sessions) or an attorney general, solicitor general, clerk of any court, sheriff, treasurer and re- ceiver general, register of probate, or register of deeds who has been elected to Congress, accepts that post, he cannot continue to hold his office.
In view of the general constitutional policy against the holding of incompatible offices, the courts have construed Amendment VIII very strictly. Thus, in the case of Common- wealth v. Nathan M. Hawkes (123 Massachusetts Reports, 525), the Supreme Judicial Court held that a special justice of a police court was a judge of a court of the Commonwealth within Amendment VIII, and that such a special justice, therefore, could not at the same time have a seat in the House of Representatives.
Article X, proposed by the Convention of 1820 but not adopted until May 11, 1831, provided that the political year begin on the first Wednesday of January instead of on the last Wednesday of May, and that all State elections be held on the same day, the second Monday in November. This was later amended so as to make elections fall on the Tuesday next after the first Monday in November.
PROCESS OF THE NINTH AMENDMENT (1821)
Of the various constitutional changes accomplished by the Convention of 1820, the most important was that embodied in the Ninth Amendment, which supplied the sadly needed ma- chinery for alteration and revision. By the provisions of this article, an amendment could be added to the Constitution if approved by a bare majority of the senators and two thirds of
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GOVERNMENT AND CONSTITUTION
the representatives voting upon it in two successive years, and if then ratified by a majority of the people voting on it.
This Ninth Amendment, which thus added to the Con- stitution a definite scheme for incorporating specific amend- ments thenceforward, is easily the outstanding constitutional development of the period 1820-1917. It gave a real meaning to the words of Article VII of the Declaration of Rights, which declare that "Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefensible right to institute government ; and to reform, alter or totally change the same, when their protection, safety, prosperity, and happi- ness require it."
The Ninth Amendment, even though it may not have de- vised the smoothest and most effective method of accomplish- ing its purpose, did nevertheless make a most significant addition to John Adams's document. It remedied its greatest defect. Once this defect was cured, the road was open for the elimination of the other imperfections and for the trans- formation of Massachusetts from an aristocratic to a demo- cratic republic. That this conclusion is sound may be seen from the fact that, only twelve years after the ratification of the Ninth Amendment, the established church, the pinnacle on which the entire aristocratic structure rested, came toppling down.
FREEDOM OF CONSCIENCE (1780-1820)
With all that it accomplished, the Convention of 1820 failed to set at rest the dissatisfaction with those portions of the Constitution which related to the house of representatives, the senate, and the council; and it also failed to eliminate the objections to Article III of the Declaration of Rights which defined the limits of the individual's right to freedom of conscience and religious liberty.
Article II of the Declaration of Rights expressly incorpo- rates into the Constitution the general principle of religious liberty. It provides that, since it is both the right and duty
Commonwealth
of Massachusetts.
BY HIS EXCELLENCY
JOHN BROOKS, GOVERNOR OF THE COMMONWEALTH OF MASSACHUSETTS.
A PROCLAMATION, FOR PROMULGATING THE AMENDMENTS TO THE CONSTITUTION.
WHEREAS sundry resolutions passed the Legislature on the fifth day of June, In the year of our Lord our thousand eight hundred and twenty our, in the words fedlowing, viz :
" Whereas the Convention of the Delegates of the people, assembled at Boston on ihr third Wednesday of November, in the year uf our Lord one thousand eight hundred and twenty, for the purpose of revising att anwendling the Constitution af the L'ommen- wealth, pursuant to an act of the General Cuert, passed on the sixteenth day of June, in the year aforesaid, submitted certain Articles of Amendment of the Constitution to the people, for their ratification and adoption ; and whereas it appears hy a rectificate of the Commitere of the said l'invention, that the following talk les of Amendment, so submitted as aforesaid, have been ratified and adopted by the people, in the manner directed by the said Convention, and have therchy herume a part of the Constitution of this Commou- wealth, to wił :
ARTICLE 1. If any bill or resolve shall be objected is, and not approved by the Governor ; all if the General flott ahall adjourn within Are days after the same shall have been laid before the Governor for his approbation, and thereby prevent his returning H. with his objections, as provided by the Constitution ; such bill or resutvo shall not be. come a law, nor have force as such.
ARTICLE: 2. The General Count shall have full power and anthority to erect and constitute manh ipa) or city governments in any corporate towe or lower in this Com- montrealth, and to grant to the inhabitants thereof such power+, privileges and immnullis, not repugnant to the Constitution, as the Heureat traits shall deem necessary or mape- dient for the regulation and government theerat, and In prescribe the manner of calling and holding publi meetings of the inhabitants in wards, or otherwise, for the election of officers under the constitution, and the manner of returning the voles given at with meet. Ings : provided, that na surh gureroment shall be erupted ur can-limted in any tonn ant containing twelve thousand inhabitants ; now unless it be with the consent and on the ap. plication of a majority of the infobitants of such town, present and verlag therean, pur. want to a voce at a meeting duly warned and holden for that parquets and provided also, that all by lawa made by such municipal or enty government, shall be subject, at all times, to be annalind ty the General Court.
ARTICLE 8. Every male citizen of twenty one years of age and upwards, {excepting paupere and persony under quanfianchip.) who shall have mailed whhin the Commun- wealth une year, and within the town or district, in which he may claim a right to vote, nix calendar monthy seut preceding any electiau of Governor, Larniesant Guvernes. So#- ators of Representatives, and who shall have paid, by binterlf or his parrot, master of guardian, any state or ciasty lax, which shall. within ten years next preceding such sterling, have been avermed upon him in any town we district of this Commonwealth : sad alve every citizen who shall be to law exempted from taxation, and who shall to in all scher respects qualified as alavementioned, -ball have a right to vote in wards election of Governor, Lieutenant Governor, Mrnatore and Representatives ; and.no other porsic -lmalf be entitled to vote in such plestiene,
ARTICLE 1. Notario, Public shall be acquainted by the Governor, in the same nos. ner an judicial officers are appointed, and shall hold their others dering zeven gens, unleas sooner reisved by the Governor, with the runwest of the Contril, npay the uilderes of both Honsre of the Legislature.
In raw the ofis of Secretary of Treasurer of the Commonwealth shall bessone vs. caut from any cause. during the reces of the Meneral Court, the tiovernoy, with the advice and consent of the Council, shall nominate and appoint, under such regulations as may be prescribed by law, a competent and andable person to such voraus uller, who shall hold the same until a successur shall be appointed by the formeral t'inel.
Whenever the exigencies of the Commonwealth shall require the appointment of a Commissary General, he shall be nominated, appointed and commissioned, in sus & scanner an thus legislature may, by law, prescribe.
All offers commissioned to commais in the militia, may be removed from office in auch manner as the Legislature may, by law, perscribe. ARTICLE 5. In the elections of Captain and Sahatteras of the wallille, all the men- bery of their respective companies, as well those under. as those above the age of twenty our years, shall have a right In vote.
ANTICLK G. Instead of the path of allegianre prewribed by the Constitution, the following oath shall be taken and subscribed by every person riesco or appointed in any
uffien, civil or military, under this government of this Pummouwenhh" hefure he shall enter on the duties of his offire, Jo wit :
: 41, A. R. du solemnly sweat that I will bear true faith and allegisure in the t'um- ownwealth of Massachusetts, and will support the L'an-tication therest. "to help me God." Provided, That when any person -hull be of the denomination called Quaker», and shall des lige taking said oath, he shall make his affirmation in the foregoing Forma. smit- ting the word "swear" and inserting, funded thereof, the word "afree" and painting the words "a fly me God," and subjoining, instead thereof, the words, «this f so under , the pain- and penalties of perjury."*
ARTICLE 7. No nath, declaration ar sobre ciption, excepting the usthe prescribed in the preceding article, and the oath of ofice, diall be required of the Governor, lieutenant tiovereor, Counsellors, Senstory or Repre-coatieri, lo qualify them to perform the dmies of their rexpertive offices,
ARTICLE S. No Jadyr of any Court e thia Commonwealth, (except the Court of Sessions, ) and no person holding any ofthe under the authority of the Cound Butter (Postmusiers excepted,) shall, al the same sine, hold the office of Governar, Lientenant tinverner or Counsellor, or have a seat in the Benals or House of Representatives of this s. Commonwealth ; and a Judge of asy Court in this Commonwealth, (except the Court of Sessions,; nor the Attorney General, Bolirige General, County Attorney, Clerk of nuy Could, Sheriff, Treasurer and Receiver firmeral, Righter of Products, nor Register of Derel-, shall continue to hold Itis sall office offer being elected a member of the Congress of the United States, and accepting that trust: but the acceptance of wach trust, by any of the ulficere aturesaid, shall be deemed and when in Iw a resignation of his said office: and Jadges of the Courts of Common Pleas shall hold no other ulice under the govern. meat of tha f'um mon wealth, Le dice at Justke of the Peace and Militia Offers excepted. ARTICLE 9. If at any time hrwrafter any specific and partirular ameudnom of amendments to the Constitution be propied in the fieneral Court, and agremol to by A majority of the Menators and two thirds of the mentors of the House of Representatives present and voting thereas, auch propwerd amendment or auchdarai+ shall in entered on the journal of the two Hours, with the gras and nagy taken theresus, and referred to the General Court them wat to be born, and shall be published : and it is the General Court next ciones as aformaid, sach proposed amendment or amendments chal be agreed to by a majority of the Menators and two thirds of the mendier of the Hasse of Representatives present and voting therena; then it shall be the day of the General Court in automit which proposed amendment or amendments In the people ; and if they shall be approved and ratified by a majority of the qualified vaters voting thereon, at meetings legally warned and bolden for that purpose, they shall betown part of the Condition of this Commons wealth.
Rendred, That the above recited Articles of Amendment shall be curled un parch. Bseist, noul degoedted in the Secretary', Offar, as s part of the Countindion and Fouls. samtal Laws of this fCommonwealth, and published in immediate cuunersion wherewith. in all future editions of the laws of chy Cantmeuvalth, printed by pulir authority. Aud in order that the said Amendments may be promulgated and made koven to the people if this d'ammonwealth without delay, it is further
Remofre, That In Excellency the Gurrue he, and he herchy is authorizes! wisst requested in forno his proclamation, reciting the articles afosteraid: announcing that the same have levu daly adopted and ratified by the people of this Commentnich, and be. run x part of the Constitution thereal: and requiring ad magistrates, officers shil and military, and all the citizens of this Commonwealth. to take medice thrust, and guerras themeclues accordingly .**
Now, Tereryour, I, JOHN BULOOKS, Governor of the Commonwealth of Massa- chusetts. by virtue ed the authority to use given by the re-station last above water, do www this. my Proclamation, and I do bearby senonave. that the several article- afuresaid have been duly ratified and adorded by the quejde of the- Commonnesith, and have be- come a part of the Constitution thereof. And all uncistraks, where- civil and military. asst all the cidaone of the Commonwealth, arr requoed to take midhe thereuf, and gestern themaelves arcardingly.
Given at the Council Chamber in Boston, the day and your first abors written, and in the Porty Fifth Ferr of the Independence of the I'nited States.
JOHN BROOKS.
By His Excellency the Governor,
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