USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 4 > Part 3
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ALDEN BRADFORD, Secretary. God save the Commonwealth of Massachusetts!
From an original in the Massachusetts State Archives
THE GOVERNOR'S PROCLAMATION OF THE AMENDMENTS OF 1821
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ALLIANCE OF CHURCH AND STATE
of all men in society to worship the Supreme Being, "no sub- ject shall be hurt, molested, or restrained in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience." Unfortu- nately, in the original form of the Constitution, Article II was virtually nullified by Article III, which was distinctly the work of orthodox Congregationalists who, seeking to favor their church, established it in a privileged position.
The founding of Massachusetts was due to the desire of the members of the Congregational Church to establish a common- wealth in which they could worship God according to the dic- tates of their own consciences. By the familiar inconsistency of human nature, once these same Congregationalists had achieved religious liberty for themselves, they proceeded to deny it to others, and became persecutors in the customary manner of ruling classes. Thus we soon find these erstwhile apostles of freedom of conscience banishing Roger Williams and swinging on Boston Common the limp bodies of Quakers, who would neither conform nor be banished. Banishment and hanging of all dissenters and nonconformists became the practice of the group which had fled England to escape reli- gious intolerance.
The failure of this policy to bring the expected results, however, necessitated its relaxation; and by the time the Constitutional Convention of 1780 met, the principle was well established that non-Congregationalists who could prove mem- bership in some other church were exempt from taxation for the support of the Congregational Church.
ALLIANCE OF CHURCH AND STATE (1780-1810)
The Constitutional Convention of 1780 devoted two weeks to discussion of the religious question. The futility of its deliberations is evidenced by Article III of the Declaration of Rights. This article not merely brought to an abrupt halt the evolution of complete religious freedom and liberty of conscience, but aimed at the devolution of this progressive movement.
Article III of the Declaration of Rights did not set up the Congregational Church as the state church by express lan-
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GOVERNMENT AND CONSTITUTION
guage. It did not even mention the Congregational Church. It merely empowered the legislature to compel provision for public worship and to enjoin attendance thereon. It even went so far as to provide in its fourth paragraph that "all moneys paid by the subject to the support of public worship .. . shall, if he require it, be uniformly applied to the support of the public teachers or teachers of his own religious sect or denomi- nation, provided there be any on whose instructions he at- tends." The great difficulty, however, was that in very few towns did the non-Congregationalist have teachers upon whose instructions he might attend and for the support of whom he might request that his religious tax be applied. His religious tax, therefore, being a town tax, went to support the local Congegational Church.
After. 1780, then, mere membership in another church was not, as under the provincial system, enough to relieve a dis- senter of the burden of contributing to the support of the Congregational Church. There was now the additional re- quirement that the other church be a local dissenting church. If there were a local dissenting church, the non-Congregationalist could require that the money which he had to pay for the support of public worship be applied to the support of that church. Otherwise, his compulsory religious tax went to the local Congregational Church. Since, except in the larger towns, the dissenters rarely had local churches of their own, Article III established the Congregational Church as a state church in most parts of the Commonwealth.
In 1810 a third condition was added to assure the taxation of non-Congregationalists for the benefit of the Congre- gational Church: the requirement that the local dissenting church be an incorporated church. This third con- dition arose out of Chief Justice Parson's decision, in the case of Barnes v. The Inhabitants of the First Parish in Fal- mouth [6 Mass. (Tyng) 401 (1810) ], that a minister was not legally entitled to receive the taxes of his flock unless he was the pastor of an incorporated religious society. This decision was the hardest blow of all; for inasmuch as the greater number of the local dissenting churches were not incorporated, it made the majority of even those dissenters who belonged
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AGITATION FOR DISESTABLISHMENTS
to local churches taxable for the support of the Congregational Church. It can be construed only as a legal recognition of the general principle that all persons were taxable for the benefit of the Congregational Church.
AGITATION FOR DISESTABLISHMENT (1780-1820)
The privileged position given the Congregational Church by the Constitution had provoked tremendous opposition to ratification of the document. Indeed, it would seem that the only explanation of the inclusion of Article III of the Declara- tion of Rights into the Constitution is to be found in Pro- fessor Morison's statements that "the committee [which counted the votes] adopted at the start such principles of counting that a two-thirds majority for every article was as- sured in advance," and that "an examination of the Conven- tion's method of tabulating the popular vote raises the suspi- cion that the two-thirds majority was manufactured." After 1780 this opposition continued, growing particularly strong following the decision in Barnes v. The First Parish in Fal- mouth. The church contributions being made in the form of taxes for the maintenance of public worship, they were paid to the town treasurer, who then distributed them among the various pastors. A town treasurer who was a fanatical re- ligionist might refuse to pay over to a hostile organization their share of the taxes, however, and then the litigation would start. Thus in one case fourteen law suits were necessary to force a reluctant treasurer to hand over four dollars to a Baptist society.
So obvious and imperative was the need for alteration of the provisions of the Constitution relating to religion, that the very first of the fourteen propositions submitted by the Con- vention of 1820 dealt with reform of the religious situation. The change proposed by the convention was by no means radical. The convention merely recommended the annulment of the second paragraph of Article III, which empowered the legislature to enjoin attendance at public worship on indi- viduals ; overruled Chief Justice Parsons on his interpretation of the fourth paragraph of the article by clearly stating that everyone had a right to pay his religious taxes to a pastor of his own denomination; and extended this right to Catholics
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GOVERNMENT AND CONSTITUTION
by substituting the word "Christian" for the word "Protes- tant" in that section of the article. The convention thus continued the Congregational Church in its advantageous posi- tion, and left the system of compulsory taxation for religious worship untouched. It merely discontinued mandatory at- tendance at public worship, and eliminated "incorporated" as a condition precedent to relief from contribution of taxes for the Congregational Church.
Despite the mildness of its proposed changes, the conven- tion's proposition was rejected by a majority of 8,482 out of a total of 30,612 votes.
DIVORCE OF CHURCH AND STATE (1833)
The failure of this conservative proposal to win popular approval was a boon for the radicals in the movement for the modification of Article III. These individuals now made a determined drive for not only the discontinuance of forced attendance at public worship, but also for the withdrawal of state support from the churches, a proposal which Delegate Childs, of Pittsfield, had submitted to the Convention of 1820, and which, though supported by Daniel Webster, had been twice rejected by the convention.
In this drive for a disestablished church the radicals were aided by the course of political events in both State and Nation. The conclusion of the War of 1812 had marked the beginning of a tremendous wave of liberalism and democracy throughout the country, the first effect of which in Massa- chusetts was the overthrow of the Federalists in 1824, when their candidate for governor, Lathrop, and their entire State ticket went down to ignominious defeat. The vanquishment of the Federalists by the new Republican-Democratic forces had an exhilarating effect upon the community. Up to this time society and business, religion, politics, and culture-every- thing had been dominated by the conservative and aristocratic elements in the State. Now, the restraining influence of this group was pushed aside and the forces of liberalism and pro- gressiveness surged up in overwhelming fashion.
In this movement for political liberalism and social reform, the public appetite waxed hottest during the first five years
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DIVORCE OF CHURCH AND STATE
of the thirties. This was the era of Jacksonian Democracy, and we find these years choked with religious, moral, economic, and social movements. The presence of Andrew Jackson at the helm of national affairs seemed to intoxicate the humbler folk. All sorts of "people's movements" sprang up and flourished. The traditional order had no chance.
With the public reform-mad; with Antimasons, Free- debtors, Workingmen's Parties, Abolitionists, Locofocos, and innumerable others all assailing the old Puritan conservatism; with Federalism, for which the Congregational Church as an institution stood, swept away by the new Republicanism and Democracy; and with a young but wonderfully healthy crop of Methodists and an increased number of Baptists and Uni- versalists demanding religious freedom, an established church and the principles of compulsory support of and attendance at public worship could not possibly survive. In 1832 an amendment to the Constitution, withdrawing state support from religion, was introduced in the House. It was adopted by the legislatures of 1832 and 1833 respectively ; and on May 11, 1833, it was approved and ratified by the people by the overwhelming vote of 32,234 to 3,372, the largest relative majority for any constitutional amendment ever ratified in Massachusetts.
Article XI of the Amendments rendered the oppressive Article III of the Declaration of Rights null and void. It crossed out the provisions of the fundamental law which re- quired attendance at public worship, and not only established an equality of sects but granted the State an absolute divorce from the church and denied the latter alimony. Hereafter, the State was no longer to support the churches, which were to elect their teachers and pastors, and to raise money for their support and for the erection and maintenance of houses of worship. Closing this disagreeable chapter of Massachu- setts history with a bang, Amendment XI declared that "all religious sects and denominations, demeaning themselves peaceably, and as good citizens of the Commonwealth, shall be equally under the protection of the law; and no subordina- tion of any one sect or denomination to another shall ever be established by law."
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GOVERNMENT AND CONSTITUTION
PROBLEM OF REPRESENTATION (1780-1834)
The adoption of the Eleventh Amendment brought to a close one of the chief constitutional problems of the day- the matter of church and state. There still remained, however, the difficulties raised by the constitutional provisions relating to the house of representatives, the senate, and the council. These were among the chief causes for the calling of the Con- vention of 1820. Their final solution was to require the summoning of still another convention, and the adoption of no less than five amendments to the Constitution.
The Constitution provided that there should be in the legis- lature of the Commonwealth a representation of the people, annually elected, and founded on the principle of equality. To accomplish the purpose of this provision it adopted the so- called town system of representation. Every town containing 150 ratable polls was given one representative; every town containing 375 ratable polls was to have two representatives; a town with 600 ratable polls was to be entitled to three repre- sentatives : and so the basis of representation was to be deter- mined, 225 ratable polls being the basis of increase for every additional representative. As a concession to the small towns, however, the Constitution further provided that every town already incorporated, no matter how small, was to have one representative, a right which the small towns had enjoyed ever since 1692. In the future, however, no place was to be incorporated with the privilege of electing a representative unless it had 150 ratable polls.
The town system of representation appealed to every one in 1780, since it preserved the traditional rights of the small towns and at the same time gave the large towns representa- tion proportionate to their size. But experience soon revealed serious defects in this system. Prior to 1811, the towns had to pay their own representatives. To avoid this expense, the small towns would frequently refuse to elect any representa- tives when they were not particularly interested in matters pending before the legislature. This meant unequal represen- tation of course, and was not, therefore, that "representation of the people, annually elected, and founded upon the prin- ciple of equality" which the Constitution intended. More-
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REPRESENTATION REFORMS BLOCKED
over, as sixty were a quorum, the more populous towns, being so near at hand and able to attend easily, could in a thin house pass laws which would not be for the good of all the members of the Commonwealth.
To eliminate this unequal representation, an act was passed in 1811 to pay representatives for their services out of the public treasury. This legislation merely made matters worse. The population of the State and the number of towns, par- ticularly in Maine, had been increasing very rapidly, and at the next session following the act of 1811 the number of members of the house was over seven hundred, or one for every thousand persons. Clearly a house of such a size was too unwieldy to serve as a representation of the people, and the act was accordingly repealed in 1812. But this repeal restored the old inequality in representation and also the old fluctuations in the membership of the chamber, which ranged during the next decade between 160 and 398.
REFORMS IN REPRESENTATION BLOCKED (1820-1834)
The solution offered by the Convention of 1820 for this problem of the uncertain size of and unequal representation in the house was that of changing the basis of representation from ratable polls to inhabitants, and adopting a minimum unit and mean increasing number for representation which was almost ten times that of the Constitution. This proposi- tion, however, involved a diminution in the influence of the small country towns of the western part of the State. The agrarian West, perceiving the rapid growth of the population of the industrial and urban East, was determined to prevent any readjustment which would curtail its representation. It therefore made a vigorous drive against the convention's proposition, and accomplished its rejection by a vote of 20,729 nays to 9,904 yeas. Thoroughly alarmed at this threat to its influence, it also succeeded in having another law passed mak- ing members' salaries payable out of the State treasury; and thereafter, whenever a remedial amendment passed the legis- lature, it sent enough members to the next legislature to prevent its getting before the people.
With the house membership exceeding six hundred again,
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GOVERNMENT AND CONSTITUTION
thanks to the new law making members' salaries payable out of the public treasury, and with the conduct of State business and the enactment of popular legislation almost impossible, the demand for reform constantly increased. So strong did the agitation become, that in 1833 the house ordered a committee to consider the propriety of submitting to the people the ques- tion of calling a convention to amend the constitutional pro- visions relating to representation. Although indefinitely postponed in 1833, this question of calling a convention was revived in 1834. But the agrarian West in 1834 killed the bill for a convention to amend the articles of the Constitution on representation.
REFORM IN SIZE OF HOUSE (1835-1857)
It being impossible to agree on a bill for calling a conven- tion, the sole remedy was for both sides to compromise on a single amendment. This was done in 1835. In that year Article XII of the Amendments was introduced. This article did not abandon the system of town representation and ratable polls as the basis of representation. It did, however, double the unit of representation, a step which would of course reduce the membership of the House. The article was adopted by the legislatures of 1835 and 1836; and being ratified by the people, November 14, 1836, it became part of the fundamental law.
The membership of the house still remained too large, and it became apparent that the only thing to do was to try another amendment. In 1839, therefore, the Thirteenth Amendment was proposed. It was passed by the legislatures of 1839-1840, and approved and ratified at the polls, April 6, 1840. Under this article, the basis of representation was no longer to be the number of ratable polls but the number of inhabitants. Every town, city, or representative district composed of two or more towns containing 1,200 inhabitants was given one representa- tive, and 2,400 was made the mean increasing number of in- habitants entitling it to a second representative.
In thus substituting inhabitants for ratable polls, Amend- ment XIII of course did improve matters in the House. Be- cause it retained the old system of town representation,
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SENATORS AND COUNCILLORS
however, and neglected to adopt the principle of a fixed membership, it could not be the final solution to this problem. Seventeen years later Amendment XIII went the way of Amendment XII, and was superseded by Amendment XXI, which definitely settled the matter by establishing a House of 240 members, distributed in districts according to the number, not of ratable polls or inhabitants, but of legal voters.
SENATORS AND COUNCILLORS (1840)
Of far greater significance than its provisions concerning representation in the house of representatives are the pro- visions of Amendment XIII relating to the senate and council and to the property qualifications for office holding. The Constitution had made no discrimination in the voting between the senate and council. It simply provided that the people elect forty men as "councillors and senators." The forty thus chosen, voting jointly with the house of representatives, then elected nine of their number as councillors, leaving a senate of thirty-one members. This method of electing senate and council was found unsatisfactory. In the first place, removing nine of the forty "councillors and senators" in order to make up a council, left the senate too small. Moreover, as a seat in the senate was more influential, and therefore more desir- able than a seat in the council, and as party politics frequently demanded that a man elected councillor stay in the senate, men would frequently refuse to allow themselves to be elected into the council, or if elected councillors would refuse to give up their senate seats.
These difficulties were now removed by the Thirteenth Amendment. Under this amendment the cumbersome method set up by the Constitution for determining the membership of the senate and council was abandoned, and the separate election of senators and councillors established. Hereafter the senate was to consist of forty members chosen from the old senatorial districts. In addition, there were to be nine councillors, chosen from the people at large by the joint ballot of senators and representatives. The council thus ceased to be deputed from the senate. It became a popular body by the adoption of the Sixteenth Amendment fifteen years later.
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GOVERNMENT AND CONSTITUTION
PROPERTY QUALIFICATIONS FOR GENERAL COURT AND COUNCIL REMOVED (1840)
In addition to changing the basis of representation in the house of representatives from ratable polls to inhabitants and providing for the separate election of senators and council- lors,-the former to be a fixed body of forty; the latter, of nine,-the Thirteenth Amendment did away with the property qualifications for holding a seat in either branch of the Gen- eral Court or in the Executive Council. "No possession of a freehold, or of any other estate," provides this major amendment, "shall be required as a qualification for holding a seat in either branch of the general court, or in the execu- tive council." The new democracy, which in 1821 had ac- complished the abolishment of all religious oaths and tests and the substitution of the requirement of tax-paying ability for property qualification for the franchise, had now taken another long stride.
DEMAND FOR CONSTITUTIONAL REFORM (1840-1850)
Because it was impossible to obtain the support of the agrarian West for the calling of a convention to revise the constitutional provisions relating to representation in the House, single amendments had to be resorted to. Still the membership of the house of representatives continued to fluctuate, and the old inequalities in representation continued, for the substitution of inhabitants for ratable polls as the basis of representation upset the old balance between "country" and "city," and proved an ideal means of enabling the con- stantly growing urban and industrial centers to control the State. Thus from 1840 on we see a renewal of the demand for a constitutional convention which had characterized the thirties.
The realization of this demand became possible as a result of a change which occurred in State politics in 1850. The years 1840-1850 saw Massachusetts politics in a confused condition. Three parties existed-Whigs, Democrats, and Free-soilers. Of the three the Whigs were strongest in the
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CHANGES IN POLITICS
urban districts, while the Democrats and Free-soilers de- pended for support on the interior of the State.
In the struggle between these groups, the Whigs had the upper hand until 1850, when the Free-soilers and Democrats not only secured control of the legislature but so manoeuvred the election of governor that no candidate secured the re- quired majority. Under the Constitution this meant that the election was thrown into the General Court. That is, the House had to certify to the senate two of the names voted for in the senate, out of whom the senate chose one. This happening gave the Democrats and Free-soilers the opportunity they sought to gain control of the executive. In the existing situation the executive was in the keynote position. By plac- ing himself at the head of the movement for reform, an opportunist governor could win great popularity for himself and his party, and perhaps enable the latter to gain control of the State. Being a majority in the legislature, Democrats and Free-soilers struck a bargain. The former were to have the governor, most of the State officers, and a senator for the short term expiring March 4, 1851, and the Free-soilers were to have the senator for the six-year term. It was as a result of this arrangement that George S. Boutwell was inaugurated governor in January, 1851.
CONSTITUTIONAL CHANGES IN POLITICS (1851-1852)
The inauguration of Governor Boutwell marked the begin- ning of a determined drive for the elimination of the "inequali- ties" in the system of representation. Acting upon the recommendations made by the governor in his inaugural message, the General Court almost immediately appointed a joint committee to investigate the problem of representation. As the amendment recommended by this committee gave the smaller towns an unfair advantage over the larger ones, it failed to secure the required two-thirds majority in the house. The coalitionists, eager to make the most of their advantageous position, immediately introduced a bill into the senate for submitting to the people the question of calling a constitu- tion convention. This bill was passed, and November 10,
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GOVERNMENT AND CONSTITUTION
1851, was voted on by the people, who rejected it by a vote of 65,846 to 60,972.
The closeness of the vote of 1851 induced the next legis- lature to renew the proposition, and at the November elections of 1852 the bill for a constitutional convention won sufficient popular support to become a law. March 7, 1853, the election of delegates to the convention took place, and a little less than a month later, May 4, 1853, four hundred and twenty-odd delegates assembled at the State House to commence the work which was to occupy them for nearly three months, until their dissolution on August 1. They included such men as Natha- niel P. Banks, who was elected president, Professors Parker and Greenleaf of the Harvard Law School, Charles Sumner, Henry Wilson, and Robert Rantoul.
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