USA > Massachusetts > History of Massachusetts from the year 1790, to 1820. v. 3 > Part 18
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ed in Convention, and afterwards submitted to the citizens for their opinion. Only-nine were approved by them ; and one of these related merely to the mode of introducing future alterations.
It was proposed by the Convention so to alter the third article of the Bill of Rights, as that the Legislature should not have the power to enjoin on the citizens an attendance upon public religious worship-as that a person might pay his religious or ministerial tax to the clergyman of any Society, to which he should choose to unite himself, even if of the same sect or denomination, and if formed within the limits of the parish, to the support of the minister of which he was before regularly assessed -and as that no citizen of the State should be liable to a tax for the support of any clergyman, except the one on whose instructions he attended, although he should have property in other towns or parishes, than that in which he resided. But these proposed alterations were not approved by the people : and the third article in the Bill of Rights was, therefore, retained, without alteration. By thus rejecting the proposition of the Convention, the people vir- tually declared their disapprobation of the law of ISI1, which gave occasion, to those disposed to avail of it, to avoid paying to the support of any regular religious teacher, and to form societies, religious only in name, where no regular instruction and worship were enjoyed. But the Supreme Judicial Court seem to have admitted the consti- tutionality of the law of 1811 ; and that is the legal tribunal to decide what is the meaning and intent of the Constitution.
The Convention was in favor of an alteration of tlie Constitution, by which only one session of the
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General Court, in a year, should be required ; and that to commence the first Wednesday of January ; with a power in the Legislature, or the Governor, to have other meetings, when the exigency of public affairs might render it necessary. But such a change was not approved by the majority of the people. Another alteration of the Constitution proposed by the Convention, and that a very ma- terial one, was, that the Representatives should be chosen by districts, instead of towns which had always been the practice in Massachusetts. The object was to reduce the number of Representa- tives, so that they should not exceed 250 or 260. As the Constitution was, the whole number of Rep- resentatives might be upwards of 500, even after the separation of Maine; and this was thought to be unnecessary as well as expensive. The prop- osition was that a town containing 1650 inhabitants might send one Representative ; and a town with 3600 inhabitants might elect two : and that small towns contiguous to each other should unite in the choice of a Representative. But the plan did not receive the approbation of the people.
It was also the opinion of the Convention that the tenure of office for the Judges of the Judicial Courts, should be expressly during good behavior, without a liability of removal for any other cause. But the people were satisfied with the provisions of the Constitution on this subject, and did not rat- ify the proposed alteration. "They probably, con- cluded, that there would be no danger of their re- moval, for merely political purposes ; and that they were really secure in their office, while their conduct was dignified and impartial, as it always had been. A majority of the people were, indis-
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putably, in favor of the independence of the Judges, and would have rejected any measure, which they believed designed to lessen their power, or their dignity ; or to place them in a state of dependence upon the popular will, or upon the favor of other officers of the government.
The alterations proposed by the Convention, to which the people assented, were, that the Gov- ernor should have five days, while the General Court was in session, to consider and make his objections to any bill which might be laid before him ; otherwise the bill should not become a law. The reason for making this alteration was, that, on one occasion, a few years before, the General Court had voted, that a bill adopted and sent to the Governor for his approbation, should be valid as a law, though the Governor had but part of one day to consider its provisions, when the Court adjourned.
Another alteration in the original Constitution was to give authority to the General Court to con- stitute municipal or city governments in any town in the Commonwealth, which contained 12,000 inhabitants, the Legislature reserving the power to annul any by-laws made by a city government.
The article or clause' of the Constitution, re- specting the qualifications of voters for State rulers and Representatives, was so modified, that a citi- zen of the age of twenty one years, who had resid- ed within the Commonwealth one year and within the town in which he claimed the right to vote, for six months preceding an election, and who had also paid a tax within two years, in some town within the State, should have the right of suffrage. It was also provided by an article proposed by the Convention, that, in the election of officers of the VOL. III. 34
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militia, those under the age of twenty one years, who were members of a company, should have a right to vote. Of these the people also approved.
Notaries Public had formerly been chosen by the General Court; but it was recommended by the Convention, that they should be appointed by the Governor, with the consent of the Executive Council, in the same manner as Justices of the Peace, and for the same time, which is seven years. This alteration met with the approbation of the people. That part of the Constitution, which re- quired all the Legislators, magistrates and civil of- ficers to declare their belief in the christian reli- gion, was annulled ; and the oath of allegiance to the Commonwealth much abridged. The incom- patibility of office, or offices, was made more def- inite, and in some instances increased ; for it was provided, that no county attorney, Clerk of a Court, Sheriff, Register of Probate or Register of Deeds should at the same time, be a member of the Congress of the United States ; and that no Judge of the Court of Common Pleas should hold any other office under the government of the Com- monwealth, except the office of Justice of the Peace or of an office in the militia.
A mode was also proposed in Convention for making future amendments in the Constitution and approved by the people ; which was of the follow- ing import-The amendment proposed must re- ceive the consent of the majority of the Senate, and of two thirds of the members of the House of Rep- resentatives-be published and approved by the like numbers in the next succeeding General Court ; then submitted to the people; and if approved by the majority of those who voted thereon, to become
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a part of the Constitution of the Commonwealth .* The greatest harmony prevailed among the men- bers of the Convention during the whole period of its session ; although they belonged to different political parties, which had formerly manifested a great degree of opposition to each other, in their sentiments on public measures; and were some- times accused even of cherishing principles of gov- ernment of no little variance. The latter opinion was fully shewn to be unfounded, by the agree- ment of the whole Convention, as to the essential and fundamental principles of the Constitution. And with the great body of the citizens, it was a source of satisfaction and of gratitude, to reflect that in strengthening and repairing the foundation upon which the free and republican institutions of the State were to rest, there was but one spirit and one purpose prevailing, and that was such as the purest patriotism and an ardent desire for the liberty of future generations would dictate and approve.
At the session in June, 1820, the House of Representatives resolved, that the pay of the mem- bers should be in the same way and manner as their travel. But the Senate did not concur with the House in this resolution. They said, "that the Constitution provided that the expenses of travel- ling to the General Court and returning home should be paid out of the public treasury; but made no provision respecting payment for attend- ance. The first General Court, held under the Constitution, provided by a resolve of November 13th, 1780, for the payment of the Legislature for their attendance, and that the pay of the House of
* See Appendix.
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Representatives be charged to the several towns, agreeably to the Constitution."
In 1890, the Electors of President and Vice President of the United States were chosen by the citizens in districts. There were no political par- ties at that time, and but one prominent candidate presented to the people. Here is [proof, that this is the most natural and proper mode of choosing the Electors. It is only in a time of party excite- ment that any other mode will be adopted, except that of a general ticket; to which, in a small State, there can be no good objection. The peo- ple ought to vote for the Electors ; and no intelli- gent man will give his vote for one, with whose character and opinions he is unacquainted. Pub- lic agents should never perform any acts, to which they were not appointed, and which it is the pre- rogative of the people themselves to do. The Electors all voted for Mr. Monroe, then Chief Magistrate of the United States.
By a reference to the Speech of the Governor to the General Court in June 1821, it will appear how highly he appreciated the benefits of industry and of the moral virtues to social happiness.
" The general prevalence of industrious habits, and of good manners and morals in the communi- ty you represent, " he observes, "is a subject of pleasing contemplation. It encourages the persua- sion, so grateful to every benevolent mind, that re- ligion and the laws are effecting those salutary purposes, which they were intended to produce. It is at the same time a satisfactory pledge of the prosperity and happiness of the people of the Commonwealth.
" The truth of no position is more fully estab-
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lished, than that a close connexion subsists be- tween the morals of a people and their enjoyments. And as this connexion results from an order of things ordained by the Great Creator, it must be indissoluble. Evils incident to humanity, commu- nities and individuals should be prepared to en- counter. We are not authorised to look for an exemption from moral any more than from physi- cal evil. Under the present economy of providence, vice and crime must be expected to intermingle themselves with the affairs of men ; and the vigi- lance of the legislator as well as of the magistrate must be in constant requisition to guard and pro- tect the community. But the history of mankind tends to inspire the belief of a gradual ameliora- tion.
" Forms of government, systems of religion, and a state of civilization and refinement, exert a powerful influence in forming the manners and morals of a people. And here may we not foster strong hopes of the continued prosperity and hap- piness of our country ? The manners and morals of the people of Massachusetts have been formed under circumstances peculiarly fitted to insure their permanence. Our free Constitutions of gov- ernments, the benign religion we profess, the im- provements in the powers of the understanding, our habits of order, together with our physical re- lations to climate, soil and occupation, conspire to render durable the liberties and the prosperity of the State.
" Massachusetts was always free. Our forc- fathers brought with them from the other hemisphere their civil and religious privileges, which, being transplanted to a new region remote from the
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blighting influence of despotism, gradually acquir- ed greater amplitude, struck a deeper root, and attained a more vigorous growth. Under charters which had been granted with reluctance, our an- cestors, though watched with jealous vigilance by the grantors, acquired more enlarged and definite ideas of their rights ; and liberty, no longer a fanci- ful theory, was reduced to practice and became habitual. When the ties which bound the provin- cos to Great Britain were severed, the former, though knowing no constitution but a charter, al- ready recognized only as belonging to history, re- mained firm and steady in their habits. The sepa- ration could scarcely be deemed a revolution. An- cient usages supplied the place of laws, until after the lapse of five years, the Constitution under which we now assemble, was formed and adopted. Without arrogance, or intending to utter an invid- ious remark, it may justly be affirmed, that no people on earth ever enjoyed so great a share of the blessings of freedom and self government as do the people of the United States. Not, indeed, that undefined and tumultuous liberty, which has occasionally agitated the government and embla- zoned the history of some other nations; but that sober, rational liberty, which equally consults for and protects the rights of all the people, and man- ifests itself with a mild, steady and benignant lus- tre in our civil constitutions.
"Among the means, on which the public pros- perity depends, industry holds a distinguished place. Few of our enjoyments, indeed, are de- rived from any other source; and without the agency of industry, all our hopes of future pros- perity must wither and die. To many of the vices
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which debase and impoverish mankind, it proves: the most efficacious antidote; and, as the founda- tion both of public and private wealth, has undis- puted claims to legislative consideration. By the power of industry, the American wilderness has been reclaimed; and our fields, enriched by cul- ture, are made to teem with plenty. Industry has erected our temples of religion, of learning, and of justice. It has raised and furnished and adorned our habitations, built and navigated our ships, and filled our stores and garners with the products of various climes.
" We live in a land, in which the rights of man are well understood, where we meet one another enjoying the same franchise, and the offspring of a common parent. On this hallowed foundation is erected our venerated Constitution : and all sub- ordinate institutions-our laws, the caro bestowed on the education and morals of youth, the ample & scope given to talent and mental effort, the princi- ple of equality which governs the distribution of estates, and the interest which every one has in maintaining a free government -- conspire with many other causes, to render the constitution per- petual. No better proof can be furnished of the merits of this political compact, and of its adap- tation to the character and circumstances of the Commonwealth, than that for forty years it should have been the means of making a great communi- ty happy. The result of the test, to which it has been recently subjected, has proved the attachment of the people to the Constitution; and that, in: their estimation, few alterations only were expedi- ent."
During the period from ISIG to 1821, a great
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number of cotton and woollen manufacturing coni- panies were incorporated. Previously to that pe- riod, there were nearly one hundred similar estab- lishments in the State. In several of these a large capital was invested; particularly in those, then recently incorporated. 'The amount vested in col- ton and woollen manufactures was estimated at $90,000,000. Those which were skilfully con- ducted, proved to be profitable establishments for several years .. Yet the aid of the national gov- ernment was solicited, in favour of the manufac- turers, by imposing higher duties on imported cotton and woollen goods. This system and poli- cy, however, were much opposed by those engag- ed in navigation ; and generally, by the citizens in the eastern States. But a few years after, the ad- vocates for this policy in Massachusetts increased, though the opposition of a respectable portion of the people was as strong as at any former period. By the former, it was asserted, that extensive do- mestic manufactures would add to the prosperity of the country, and that some specific legislative protection was necessary to their support ; while the latter contended, that commercial intercourse and trade with other countries should be as free as possible ; and that legislative interference would operate unequally upon the people. The Legisla- ture of the State, however had no controul in this business ; it belonged exclusively, to the federal government to make laws for its regulation.
In addition to his ordinary duties, as the Su- preme Executive and civil officer of the Common- wealth, the Governor had devolved on him, by the Legislature, the management of the claim on the government of the United States, for the expenses
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of the militia in the war of 1812. He was au- thorised, in IS17, to appoint agents to present and urge the claim of the State. This was promptly done, but without success-Afterwards, the Gene- ral Court requested the members of Congress from the State, to attend to the subject-and at a later period, (1819,) the Senators from Massachu- setts were instructed to present the claim, and to obtain an allowance from Congress. But all these efforts were ineffectual. In 1820, the Legislature again intrusted the subject to the Governor, to be managed in such way as he might think proper and expedient. The Governor consulted his Council as to the best mode of prosecuting the claim. An able and claborate report was soon after made on the subject, by a committee of the Council, to whom it was referred .* The report was unani- mously accepted by the Council, and published by their order.
In this report, it was shown, that the state of things in 1819, when war was declared, and the request first made for the militia, was a novel one; and that there might be a difference of opinion be- tween the Governor and the officer of the United States, without impeaching the patriotism of the former, or rendering him justly liable to the charge of improper opposition to the measures of the na- tional administration-that the Governor had du- ties to discharge, for the protection of the rights of the militia-that he intended not to oppose the laws of the federal government, nor to decline a compliance with the requisitions of its officers, ex- cept when such compliance would, in his opinion,
* Hon. Richard Sullivan was Chairman of that Committee. VOL. III. 35
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be a violation of his duty to the people of the State-that great difficulties arose, on the part of the militia themselves, to an execution of the or- ders of the United States officer, in the manner proposed-that whenever invasion threatened, the Governor called out the militia for the defence of the country, and on several occasions according to the request of the officer of the national govern- ment : thus showing a disposition, not to oppose or embarrass, but to aid the views of administra- tion -- and that, as the general government provided no means of defence, the imperious duty devolved on the Governor and Legislature of the State, by whose orders it was efficiently and economically defended : and, therefore, that the federal govern- ment ought to provide for a reimbursement of the sums expended.
The Governor requested the Secretary of the Commonwealth to send the report to several gen- tlemen not of the Council, but who were distin- guished for their public services and political wis- dom. From these persons, the Secretary receiv- ed notes, in which they expressed their approba- tion of the view taken of the subject, in the re- port of the Council. One of them said, "I thank you for the report of the Committee of the Coun- cil. I have read it with attention ; and it appears to me a temperate, able and logical exposition of the merits of a claim, which ought not to be suf- fered to slide into oblivion ; and the consideration of which, I trust, will be favourably affected both by the matter and the manner of the report. The letter of General King, respecting the defenceless situation of the maritime frontier of the State, so far as regarded the forces of the United States, is
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an important document." Another observed, " I have read with great pleasure the report on the merits of the claim of Massachusetts on the gene- ral government. It is able, complete and conclu- sive. Its effects ought to be decisive. But fair statements, strong arguments, and logical conclu- sions, do not always produce the effect they ought. This elucidation of the claim, I consider very hap- py, both in its talent and in its spirit, to meet and to avail of any favourable opportunity for.a.fair and impartial examination."
Governor Brooks was a decided advocate for the rights of the State. In his public speeches he was explicit on this point .* He considered the federal government as one of limited powers. The authority which it could justly exercise,he con- tended was expressly declared or clearly implied ; and when powers not delegated by the Consti- tution, were assumed by Congress or the national rulers, he conceived it a solemn duty to remon- strate against the acts and measures thus arbitra- rily proposed. But the legitimate authority of the general government, he was always ready to sup- port and obey. He believed that the federal gov- ernment was essential to the welfare and prosperi- ty of the Union ; and that the powers given to it by the States should be no farther limited than they were by the Constitution. About the theory of the general government, however, there is little dispute. A collision of opinion occurs only on the application of principles to particular cases. No one doubts the just authority of Congress "to provide for calling out the militia to repel inva-
* See pages 242, 243, 253.
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sion," when an attack is made, or immediately menaced, on the territory of the United States ; or the right of the President to direct a military offi- cer to command them, to repel such invasion. But many do deny the constitutional power of Con- gress to provide for calling out the militia on any occasion not specified in the federal compact ; and the right of the President, or of any officer he may appoint, to order them into service, except in the manner authorised both by law and the Constitu- tion, and when the exigency occurs, contemplated by that instrument. The President of the United States is as much bound and limited by law, as any other public agent : and Congress even, the Supreme Legislature of the Union, is restricted in its authority, by the Constitution. If these limits are disregarded by Congress, or the President, and powers are assumed not granted to the federal government, the people, through the State rulers, may be expected to protest against the exercise of such assumed authority.
A spirit of forbearance, of wisdom and compro- mise, such as led to the adoption of the federal Con- stitution, will often be necessary both in national and State rulers, to prevent unpleasant collisions, and to preserve the peace of the Union. The call for the militia of Massachusetts in June 1812, when war was first declared, and when there was no act- ual invasion and none immediately threatened, was believed by some of the wisest and best citizens in the State not to be warranted by the Constitution ; and hence the origin of the dispute between the rulers of the State and Nation. When it was ob- jected, that there was no invasion, and therefore no just cause for calling forth the militia, it was at-
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tempted to justify the requisition, by stating, that the regular troops in the national service were or- dered away to invade.Canada, and that the mari- time frontier of the State would be exposed. But even this could not justify the claim of the national rulers to the service of the militia, nor an order of the Governor for that purpose. Nothing but inva- sion, or the imminent danger thereof, could author- ize the calling out of the militia. To press the people into the military service, except in such an exigency, would be a gross violation of their un- alienablerights. Even if the plans of rulers are such as to lead them to expect an invasion of the coun- try, at some future day in retaliation for hostile at- tacks on another nation, they could not justly call the militia into actual service, before an invasion took place, or immediately threatened. They could, with propriety, only order the militia to be detached, and to be in readiness for the service, whenever the exigency should occur. Such a dis- tinction seems to have been perceived and recog- nized by the federal government in 1795. Surely, the national rulers would not plead their own neg- lect or errors as an excuse for requiring service of the militia, which, otherwise they could not con- stitutionally demand. It would be an arbitrary exercise of power, both in national and State rul- ers, to require the service of the militia, in any cases except those mentioned in the Constitution. A different construction put upon the clause of the . Constitution, which refers to calling out the militia, would allow such a controul over the citizens, as to render them liable to military service on any occa- sion and in any manner the rulers might direct. The claim set up by the officers of the general gov-
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