USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 5 > Part 59
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ARTICLE 156 (1919)
Parker and Dresser argued that by expressly repealing the existing provisions of the Constitution and reenacting them differently arranged, their established construction would be lost. To avoid such a result, an enacting clause was adopted, which Samuel Hoar afterwards wittily characterized as a "suicide clause."
It was the interpretation of this clause that led the Supreme Judicial Court to determine that the Rearrangement is not the Constitution but something in the nature of a digest of it- of no legal effect whatever. Walker of the General Com- mittee expressed apprehension that such might be the effect of the new draft; but Morton and Pillsbury, being the only two members of the subcommittee present at the time, and Garland, of the General Committee, were positive that the new draft merely established a rule of interpretation for the document and did not weaken the effect of the clause, and so it was unanimously adopted. The clause is as follows:
"Art. 156. Upon the ratification and adoption by the people of this rearrangement of the existing constitution and the amendments thereto, the constitution shall be deemed and taken to be so rearranged and shall appear in such rearranged form in all future publications thereof. Such rearrangement shall not be deemed or taken to change the meaning or effect of any part of the constitution or its amendments as thereto- fore existing or operative."
This clause, with other new matter necessary to supply omissions or straighten out conflicting provisions in the Con- stitution and the Amendments, was noted in the committee's report to the Convention.
THE REARRANGEMENT ADOPTED BY THE CONVENTION (Nov., 1919)
The Convention assembled on August 12, 1919, and
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REARRANGEMENT SET ASIDE
immediately took up the adoption of the Rearrangement under a suspension of the rules. It voted to insert a provision regu- lating probate proceedings, which Judge Morton thought had been erroneously omitted. Thereafter, during the debate on adoption of the draft, Bryant, of Milton, not speaking to the motion, stated that he was puzzled by Article 156, and wished to know where a person would go to find the provisions of the Constitution; to whom Parker of the subcommittee replied that the Rearrangement was not a substituted Constitution, but merely a rearrangement of the Constitution and, if any matter was omitted from it it would still exist in the cardinal law of the Commonwealth. The incident passed without further comment, and is not noted in the Journal.
The Convention voted unanimously to adopt the Re- arranged Constitution and submit it to the people, who ratified and adopted it at the State election on November 4, 1919, by a vote of 263,350, yes, to 64,978, no-an unprecedented majority of 198,381 votes in its favor.
REARRANGEMENT OF THE CONSTITUTION SET ASIDE (1920)
Under the Constitution of the Commonwealth the Gov- ernor and Council may require the opinions of the justices of the Supreme Judicial Court upon important questions of law, and upon solemn occasions. The question was raised whether the "Treasurer and Receiver-general," as he was entitled un- der the Constitution of 1780, should sign by that title, or simply as "Treasurer," as entitled by the Rearrangement. At a meeting of the Governor and the Council, December 31, 1919, an order was adopted requesting the opinion of the justices on the question whether the "Rearrangement of the Constitution" is the "Constitution or Form of Gov- ernment for the Commonwealth of Massachusetts." That question was answered negatively by the court.
The justices based their opinion on the construction of Clause 157 (earlier Clause 156) given by Parker in his col- loquy with Bryant. They declared that the words "rearrange- ment" and "rearranged" do not express revision, codification, or the establishment of something new; and they draw the in- ference that neither the committee nor the Convention had
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CONSTITUTIONAL CONVENTION
the intention of changing "in the remotest particular the meaning, scope, or effect of the then existing Constitution and its Amendments." They were also of the opinion that "the approval and ratification of the Rearrangement of the Constitution by the majority voting on the subject at the last election do not affect the question of whether it is the Con- stitution or not."
The opinion of the justices came as a great surprise to most persons; and Loring, who was then serving in the State sen- ate, brought the matter of adopting the Rearrangement as the Constitution before a joint session of the General Court, with the approval of a large number of members of the Conven- tion. Although Ex-Governor McCall, who recommended the call of the Convention to revise the Constitution, and Ex- Governor Bates, president of it, and Judge Morton, Pillsbury, and others appeared before the committee in favor of the amendment, and a preliminary caucus indicated favorable action, the proposal was rejected by a nearly unanimous vote of the General Court.
REARRANGEMENT HELD NOT TO BE THE CONSTITUTION
Although advisory opinions of the justices have great weight and are very seldom reversed, yet they are not strictly decisions of the court on the matters involved, nor a precedent when the question arises in litigation between parties. There- fore, to get an authoritative decision in the matter, two peti- tions were filed (one by Loring, who was then chairman of the Commission to publish the General Laws, and the other by Bates, Morton, Pillsbury, and others) asking the Supreme Judicial Court to order the commission to print the Rearrange- ment in future publications of the laws as the Constitution of the Commonwealth; and these were argued in April, 1921.
Chief Justice Rugg, delivering the opinion of the court, says: "The reasoning, and in the main the words of the advisory opinion are adopted as the ground for this judg- ment." The Court decided that the Constitution of 1780 and its Amendments, and not the Rearrangement, are the funda- mental law. De Courcy and Crosby, J. J., dissenting, found in the records of the Convention a constant purpose
THE COMMONWEALTH OF
MASSACHUSETTS.
CONSTITUTIONAL CONVENTION.
In the Year One Thousand Nine Hundred and Nineteen.
A CONSTITUTION
or
FORM 0 F GOVERNMENT
for
THE COMMONWEALTH 0 F MASSACHUSETTS
PREAMBLE .
The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measure's necessary for their safety, prosperity, and happiness.
The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them; that every man may, at all times , find his security in them .
We, therefore, the people of Massachusetts, inhabiting the territory formerly called the Province of Massachusetts Bay, acknowledging, with grateful hearts, the goodness of the Great Legis lator of the universe, in affording us, in the course of His providence, an opportunity, deliberate- ly and peacefully, without fraud, violence, or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for our selves and posterity; and devoutly imploring His direction in so interesting a design, do hereby solemnly and mutually agree with each other, to form ourselves into a free, sovereign, and independ- ent body politic, or state, by the name of The Commonwealth of Massachusetts, and do agree upon, or dain , and establish , the following DECLARATION OF RIGHTS, AND FRAME OF GOVERNMENT, as the CONSTITUTION thereof.
A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OF MASSACHUSETTS .
ARTICLE 1. All men are born free and equal , and have certain natural , essential , and undlien- able rights; among which may be reckoned the right of enjoying and defending their lives and liber ties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtain ing their safety and happiness.
ART. 2. It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great Creator and Preserver of the universe. And no From the Original Document
FIRST PAGE OF THE REARRANGED CONSTITUTION
661
LAST EFFORT AT REARRANGEMENT
to review the Constitution to be shown by the recorded acts of the legislature, people and Convention. They find that the document itself has the form and effect of a complete constitution, and that there is nothing in Clause 157 to render nugatory the dominant purpose of the legislature, the Con- vention and the people. Judge Crosby concluded his opinion as follows: "To hold that the committee in the performance of their duty, after many months of deliberation reported the Rearrangement, and that the Convention after making certain amendments thereto adopted it, and the people ratified it by an overwhelming vote with no intention that it should be of any validity whatever, is a conclusion that I am unable to reach."
The Boston Transcript, the day following the handing down of the decision, in an editorial entitled "The Constitution Back to Methusaleh," deplored that the Constitution of 1919, "which probably represents the highest wisdom and the sin- cerest effort of the best minds of the State, and also the de- liberate wish of the people," is set aside by the court by "a decision which questions neither the supremacy of the will or purpose of the people."
LAST EFFORT AT REARRANGEMENT
Since those closest to the question still believed that it was the will of the people to have a revised Constitution, a peti- tion to have the "Rearranged Constitution again submitted to the people with a decisive enacting clause" was filed in the General Court. Among the petitioners were the leading mem- bers of the Convention, two judges of the United States Cir- cuit Court, and one judge of the United States District Court, both United States Senators, the president of Harvard Col- lege, the deans of the Harvard and Boston University Law Schools, the officers of the Bar Association and labor organi- zations.
Nevertheless the attorney-general gave his opinion to the General Court that the Constitution could not be revised under the provisions for specific amendments provided for in it. Thus the great effort to provide Massachusetts with an under- standable and properly arranged Constitution, free from con- tradictory provisions and obsolete matter, finally was wrecked.
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CONSTITUTIONAL CONVENTION
MEN OF THE CONVENTION
The foregoing account of the Constitutional Convention is devoted to measures; the members of the Convention grouped and regrouped themselves about the succession of specific propositions. Nevertheless, all decisions were made by a pre- ponderance of votes, each representing an individual decision. For party lines and party combinations had little influence on the floor or in committee rooms. While, as has been shown in this account of the Convention, there were some combina- tions to protect group interests, notably the I. & R. and labor matters, the general motives were personal. Trading votes and combinations of "the Interests" were not the deciding forces in the Convention.
There is space in this chapter to make only brief mention of a few of the delegates who' were most prominent or exer- cised the most influence. The sixteen delegates-at-large natur- ally came to the Convention with the greatest prestige. They were Charles Francis Adams, George W. Anderson, John L. Bates, Charles F. Choate, Jr., George W. Coleman, Louis A. Coolidge, John W. Cummings, Edwin U. Curtis, Daniel R. Donovan, Matthew Hale, James T. Moriarty, Joseph C. Pel- letier, Josiah Quincy, Joseph Walker, David I. Walsh, and Sherman L. Whipple.
The eleven delegates who spoke most frequently, placed in the order of the number of words used by them, were Under- hill; Lomasney; Luce; George; Anderson, of Newton; Hart; Washburn, of Worcester ; Bennett; Edwin U. Curtis; Sawyer ; and E. Gerry Brown.
Out of the 316 members who actually took their seats, a few died or were invalided during the Convention. About fifty members were really not much interested, and seldom attended. The larger part of the two hundred and fifty or so active members, took part in the debates, many making set speeches on one or many questions.
There is space to characterize only a few of the delegates, who will be mentioned as nearly as may be in the order of their prominence in the Convention. The conspicuous services of John L. Bates, the president of the Convention, have al- ready been noticed. Some of them, such as Walsh, Whipple
663
EDWIN U. CURTIS
and Choate, were much better known as leaders in other walks of life than as members of the Convention, although they played an important part there, as indicated in the fore- going narrative.
JUSTICE MORTON
Special mention is due to the venerable James M. Mor- ton, of Fall River, former justice of the Supreme Judicial Court. He was the oldest delegate, and was regarded with universal love and respect. He was diligent in the perform- ance of his duties, and in constant attendance on the sessions of the Convention.
On questions of law, such as the proposed measures for verdicts by less than an unanimous jury, his statements were usually accepted as final. His masterly ability and industry and thought on the Rearrangement of the Constitution went for nought through his acceptance of the enacting clause pressed by Parker. When the effect of the Rearrange- ment was submitted to the Court, he filed a brief in support of its claim to be the Constitution.
EDWIN U. CURTIS
The first important debate was on the Anti-aid Amend- ment, in which Curtis, Lomasney and Anderson of Newton, were the leaders. Curtis, the chairman of the Committee on Bill of Rights, to whom the anti-sectarian proposals were referred, was a delegate-at-large (Republican) from Boston. He had been city, clerk, mayor of Boston, Assistant Treasurer of the United States, and collector of customs. Later he was police commissioner for Boston during the police strike of 1916.
In his advocacy of the anti-aid proposition, he bore the burden of the debate in favor of the amendment, and gained the respect and confidence of the Convention. In the public- trading debate he favored restricting the public's participa- tion in business to times of emergency. He supported the amendment restricting granting of credit to the State, voted "no" on the I. & R., and opposed changes in the system of taxation.
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CONSTITUTIONAL CONVENTION
MARTIN M. LOMASNEY
Lomasney, whom Anderson, of Newton, characterized as "a man whose heart is as big as his head is clear," estab- lished an influence in the Convention second to none, by his honesty, practical common sense, and plain but vigorous Eng- lish. He was born of Irish parents in Boston. His business was real estate, and he was a politician by occupation, having served six terms as alderman, two terms in the senate, and eleven in the house. He was popularly known as "the Ma- hatma of Ward 5." He was a Catholic and a member of the Committee on Bill of Rights, and filed the broad proposal which afterwards became the Anti-aid Amendment. He made no long addresses, but pungent short speeches on nearly every subject. The adoption of his general measure, in place of the elaborate, detailed amendment proposed by the committee in the public-trading matter, was a great personal triumph.
When Anderson, of Brookline, spoke of the presumption of Lomasney's "utterances," Lomasney replied : "The gentlemen of this body who have served with us know who is the 'turkey cock' that goes swinging through the chamber. I do not think there is any of that in me. I have no swelled head." On an- other occasion he referred to Pillsbury as "that old fox," which greatly amused the latter. His general attitude was conservative. He cast his influence against any amendment of the tax laws and against biennial elections, but voted in favor of the initiative and referendum.
FREDERICK LINCOLN ANDERSON
Rev. Frederick Lincoln Anderson, professor at the New- ton Theological Seminary, was elected a delegate to the Con- vention on the anti-sectarian issue. His speeches in support of the measure were learned, comprehensive, earnest and effective. He participated effectively in the debate on many other proposals, generally on the Progressive side, and voted "yes" on the initiative and referendum, compulsory voting, and biennial sessions of the legislature.
JOHN W. CUMMINGS
John W. Cummings, Independent, came to the Convention
From a photorgaph by Notman, Boston
MARTIN M. LOMASNEY
665
SHERMAN L. WHIPPLE
with the highest vote of any delegate-at-large, with a high reputation as mayor of Fall River, and as practically dean of the bar in southern Massachusetts. He had been a Butler Democrat, and had a national reputation for effective oratory. In the Convention he was chairman of the important Com- mittee on the Initiative and Referendum. His interjection of religion into the discussion of the Anti-aid Amendment seriously impaired the leadership to which his ability and eloquence entitled him. He was an earnest advocate of the I. & R., and he was one of the champions chosen to close the debate in favor of the proposition in the committee of the whole. On his motion, the courts and judiciary were excluded from the operation of the I. & R.
JOSEPH WALKER
Joseph Walker (Republican), of Brookline, delegate-at- large, Committee on the I. & R., was a member of the bar, but had devoted much of his time to politics and had served in the House for eight years, three of them as Speaker.
He was a Progressive with Bird, and the chief promoter of a convention which might adopt some sort of I. & R. He was one of the most prominent delegates and was the chosen and actual leader of the I., & R. forces, who usually followed his lead in voting on modifications of the essentials and lan- guage of the Amendment. His speeches were generally moderate in tone but positive in statement, although he some- times became sharp and impatient under heckling.
SHERMAN L. WHIPPLE
Sherman L. Whipple (Democrat), of Brookline, delegate- at-large, Committee on the I. & R., and one of the most prom- inent and aggressive lawyers in the Commonwealth, was the I. & R. candidate for Speaker, and followed Walker in opening their case. His address, ridiculing the fears of the opponents of the I. & R., stressing the inequality of social conditions and the subservience of the legislature, was effective, often quoted, and one of the sensations of the debate. He took, however, a minor part in the subsequent proceedings, except to make an able, but unsuccessful plea for non-unanimous verdicts.
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CONSTITUTIONAL CONVENTION
CHARLES F. CHOATE
Charles F. Choate, of Southboro, delegate-at-large, Com- mittee on the I. & R., a leader of the bar, was a great-nephew of Rufus Choate and shared his great legal ability but lacked his fiery eloquence. His set speech against the I. & R., stressing the inviolability of the social contract, was not effective; but he showed to advantage in debate with the many delegates who interrupted or questioned him. He made an able plea in favor of retaining the existing pro- visions for the appointment and tenure of office of the judges, and opposed the National Resources Amendment; but he advocated the Billboard Amendment as a right of the people to regulate a nuisance.
GEORGE B. CHURCHILL
George B. Churchill (Republican), of Amherst, member of the State Senate 1917-19, was a professor at Amherst, a lecturer, and an author. He maintained his position as leader of the opposition to the I. & R., both inside and outside of the Convention, until it was finally adopted by the people. His brilliant reply to Walker and Whipple at the beginning of the I. & R. debate has already been referred to. He strongly advocated biennial elections and opposed biennial sessions of the legislature. He took an active part in many other mat- ters, as an active and influential member of the Convention on the conservative side.
HERBERT PARKER
Herbert Parker (Republican), of Lancaster, graduated from Harvard in 1878, and studied law in the office of Sen- ator George F. Hoar. He had an imposing presence and was noted for fluent oratory. He was attorney-general in 1902- 1905. Later he enjoyed a large general and corporation prac- tice in Boston. In the Convention he held membership in the important Committees on Rules and Procedure, on the I. & R., and subcommittee to rearrange the Constitution.
Eminently conservative and a skillful political manager, he was one of the committee in charge of the opposition to the
667
JOSIAH QUINCY
I. & R. He proposed and persuaded the general committee on the revision of the Constitution to adopt the form of Clause 136 which resulted in the defeat of the attempt to revise the Constitution.
CHARLES L. UNDERHILL
Charles L. Underhill (Republican), of Somerville, spoke more often than any other delegate. Starting in life as a wage earner, he was in the hardware business, and a member of the House for seven years. In Convention he was on the Committees on Liquor Traffic (chairman), and Rules and Procedure. He was a strong and able representative of the plain people, a champion of the integrity and ability of the legislature and the existing system of government. He was notably forceful in replying to labor's argument in favor of the I. & R. and the curtailment of the power of the court to issue injunctions in labor disputes. Strongly conservative, he opposed the Public-Trading and Natural Resources Amend- ments, and classification of property for purposes of taxation. His addresses, notable for common sense, fire, and an in- timate knowledge of practical politics, carried unusual weight with the average delegate. He was elected a member of Congress, 1920.
JOSIAH QUINCY
Josiah Quincy (Democrat), delegate-at-large, born in Quincy, October 15, 1858, was the direct descendant in the sixth generation of Edmund Quincy (1628-1698), prominent in the Colony in the seventeenth century. He was the grand- son of Josiah Quincy, six times Mayor of Boston, 1823-1828, and later president of Harvard College.
Delegate Josiah Quincy was a member of the bar, for four years mayor of Boston, First Assistant Secretary of State under Cleveland, and member of the Massachusetts House of Representatives for four years. In the Convention he was a member of the Committee on Rules and Procedure, and chairman of the Committee on the Executive. Both before and during the Convention he was one of the principal advo- cates of the I. & R. He reported and advocated a compre-
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CONSTITUTIONAL CONVENTION
hensive measure to make the governor the responsible head of the whole executive department.
ALBERT E. PILLSBURY
Albert E. Pillsbury, of Wellesley, Republican, was one of the most striking figures of the Convention. He had been in the legislature for six years, during two of which he was president of the Senate, and he had been elected thrice at- torney-general. He was a strong man of decided opinions. In the Convention he was a member of the Committee on Rules and Procedure and Judicial Procedure (chairman), and the Subcommittee to Codify the Constitution. He made an able and bitter attack on the I. & R., and on the character of the Convention (of which he had a poor opinion), when the measure came up for engrossment, and therefore too late to be effective. For reasons best known to himself he voted "No" on the Anti-Aid Amendment.
ROBERT LUCE
Robert Luce, of Waltham, Republican, lawyer, author, writer and statesman, held a commanding position among the members of the Convention. He had been a member of the legislature for nine years, and lieutenant governor for one year. In the Convention he was chairman of the Committee on Rules and Procedure and member of the Committee of the General Court. He was an authority on parliamentary law, and later the author of a learned treatise on the subject. He was an original, profound public thinker, and originated the direct primary, for which I think he had the grace to repent. A firm believer in representative government, he was one of the leaders to the opposition of the I. & R., but he supported the Public Trading and Necessaries of Life Amendments, and the unsuccessful proposal to permit the classification of property for purposes of taxation. He was the proponent of the unsuccessful proposal for administrative legislation.
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