The Online Library of Liberty

A project of Liberty Fund, Inc.

• Controversial Papers of the Revolution, Continued.
• Novanglus.
• Addressed to the Inhabitants of the Colony of Massachusetts Bay.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.
• No. IX.
• No. X.
• No. XI.
• No. XII.
• Works On Government.
• Preface By the Editor.
• The Plan.
• The Model.
• The Defence.
• Preface By the Editor.
• Preface.
• Preliminary Observations.
• Chapter I.: Of Modern Democratic Republics.
• Chapter II.: Aristocratic Republics.
• Chapter III.: Monarchical Or Regal Republics.
• Chapter IV.: Opinions of Philosophers.
• Chapter V.: Writers On Government.
• Chapter VI.: Opinions of Historians.
• Chapter VII.: Ancient Democratical Republics.
• Chapter VIII.: Ancient Aristocratical Republics.
• Chapter IX.: Ancient Monarchical Republics.
• Chapter X.: Conclusion.

THE MODEL.

OBSERVATIONS

ON THE RECONSTRUCTION OF GOVERNMENT IN MASSACHUSETTS DURING THE REVOLUTION.

So early as the month of May, 1775, the difficulties attending the peculiar attitude of the patriotic party in Massachusetts had become sufficiently serious to elicit a letter from the Provincial Convention, the only centre of authority acknowledged at the time by the great body of the people, to the Continental Congress, requesting “most explicit advice respecting the taking up and exercising the powers of civil government,” and, curiously enough, declaring a readiness to “submit to such a general plan as the congress might direct for the colonies.”

An answer was not given to this modest, and even humble application, until it had been urgently repeated; and when at last it came, it was by no means so explicit as was requested, evidently partaking of the distracted counsels of the time. It evaded the true question of the source of power, by a resort to a fiction of law, much like that formerly used by the Long Parliament against Charles I. It assumed the charter granted by the King of Great Britain to be yet binding upon the people; whilst it charged upon the Governor, who was only his agent, acting under his appointment and pursuing his instructions, such a violation of it as forfeited all claim to their obedience. Until such a governor “should consent to govern the colony according to its charter,” it recommended a resort to the usual forms of election for a representative body, and in lieu of that officer, the substitution, by election of the convention, of a provisional council clothed with executive authority.

In this transition state, the advice thus given seems to have been deemed decisive; accordingly a new house, under the forms of the charter, was called; and a council was soon afterwards chosen, which proceeded to reorganize the courts, and “in the absence of the governor and lieutenant-governor,” to grant commissions. Some particulars respecting this period have been already given in a former volume,1 together with a copy of the invitation of the council to Mr. Adams, to occupy the chief place in the new judicial organization which it undertook to establish. But it was not long before the obstacles to this arrangement proved its utter inefficacy. Many of the people, oppressed by debts, were not slow in availing themselves of the objection, that the civil process still ran in the king’s name, although the king’s authority had been thrown off; and they went, in some places, to the length of obstructing by force the meeting of the inferior courts. A jealousy of all those denominated executive officers became so general, that they were marked for exclusion in the new elections to the representative body. Last of all, a contention arose between the council and the house, respecting the right to make military appointments, which threatened, at one moment, the most serious consequences to the weaker body. All these things served to show the slippery nature of the foundation upon which the community was standing, and from which nothing could have prevented a fall, but the immediate presence of the enemy, and the engrossing nature of the first duty of self-defence. On the fifteenth of May, 1776, the last support was taken from the charter, by the adoption in the continental congress, of the celebrated resolution and preamble, declaring it to be necessary, for reasons therein stated, “that the exercise of every kind of authority under the crown should be suppressed,” and “all the powers of government exerted under the authority of the people of the colonies.” In colonies like Pennsylvania and New York, less advanced in the struggle, this measure was construed as a dissolution of all existing forms of government, and as creating an immediate necessity for reorganization. In Massachusetts, the intermediate steps taken, though only temporary in their nature, seem to have been sufficient to dispel immediate anxiety for the consequences. Hence, it was not until September, 1776, that a proposition was adopted in the assembly, to appoint a committee, to prepare a form of government. A reasonable doubt of the extent of their powers restrained their going further without a reference to the people for authority to proceed. This course was finally agreed upon, but not until May of the next year, 1777. The people responded favorably; and, in pursuance of their instructions, the next legislative assembly devoted a considerable part of the year to the effort to make a constitution.

It is to be regretted, that, owing in some degree to the disturbed condition of things, the record of this proceeding was almost entirely neglected. The journals of the house and council furnish no light, probably for the reason that it was a matter not strictly within the province of either body, and one wherein both were fused into a single assembly having the attributes of neither. Hence, we can only gather the fact, that on the fourth of March, 1778, the form of instrument agreed upon was submitted to the people, by a resolution providing that the assent of two thirds of the voters should be required to give it validity.

This form failed to pass the ordeal of the popular judgment, so far as an opinion could be gathered from the very partial returns made of the votes. But a hundred and twenty towns neglected to express any opinion at all; and but twelve thousand persons, out of the whole state, went to the polls to answer in any way. Five sixths of them, however, voted in the negative, under the lead of a unanimous sentiment in Boston, the influence of which was at that time at its height. At this late period, it is difficult fully to comprehend the reasons of this decided condemnation. The rejected constitution of 1778 was certainly a very imperfect instrument, largely partaking of the haste and confusion of the time in which it was made; but, on the other hand, it was very much better than none at all, or than the temporary system which necessity had created. There was no bill of rights or definition of powers. The executive, legislative, and judicial departments were singularly commingled, and threatened some degree of confusion in the practical working of the machine; yet, notwithstanding these defects in the draught, it was at least a remedy for immediate evils, and the labor bestowed upon it can scarcely be said to have been wasted; for it contains the germ of some of the valuable fruits secured in the subsequent constitution.

Strange though it may seem, yet there is little reason to doubt that interests had already grown up, in this period of interregnum, adverse to the establishment of any more permanent government. So uncertain had the legislative body become of the sense of the majority on this point, that on the nineteenth of February of the next year, 1779, it adopted a resolution, proposing, that a vote of the people should be taken on two questions as a test of the will of the commonwealth. These two questions were,—first, whether the people would choose, at this time, to have any new form of government at all. Secondly, whether in case they did, they would empower their representatives to summon an assembly for the sole purpose of preparing such a form. To these propositions, nearly a third of the towns neglected to give any answer. Of the remainder, a majority of the voters responded in the affirmative. In obedience to this decision, a call of a convention was immediately issued; and elections were accordingly held, of delegates, to assemble on the first of September following, exclusively to form a constitution.

The share of Mr. Adams in this labor must now be explained. Prior to this time, he had confined himself to an expression of preference of the constitution of 1778, as a temporary measure, however imperfect, over the hazardous state of things under the provisional government. His first mission to Europe intervened, from which he only got back home on the second of August. The election of a delegate from his native town to the convention, took place seven days later, and he was the person chosen. He attended the opening of that body at Cambridge, on the first day of September, and remained in attendance until the eleventh of November, when he embarked upon his second mission to Europe. It is during this period, that his services in preparing the frame of government which was reported to the convention, and with some modifications finally adopted, were rendered. The precise nature of them, so far as they can now be distinguished, will be defined.

On Friday morning, the third of September, the convention, by a vote of 250 to 1, resolved, that it would prepare a declaration of rights of the people of the Massachusetts Bay. After some debate, it went a step further, and resolved, that it would “proceed to the framing a new constitution of government;” and it concluded the action of the day with the two following propositions:—

“Resolved, unanimously, That the government to be framed by this convention shall be a free republic.

“Resolved, That it is of the essence of a free republic, that the people be governed by fixed laws of their own making.”

The next day, a committee was chosen, consisting of thirty persons, to prepare a declaration of rights and the form of a constitution, out of whom the Hon. James Bowdoin, Samuel and John Adams, and John Lowell, were selected on behalf of the county of Suffolk, including the town of Boston. Monday, the sixth, was spent in what was called a free conversation upon the subjects that had been referred, and then it was voted to adjourn until the twenty-eighth of October, for the purpose of giving the committee time to prepare a report. Immediately upon the adjournment, the committee met in Boston, and, after extended discussion, delegated to a sub-committee of three members, the duty of preparing a draught of a constitution. The three were Mr. Bowdoin, Mr. Samuel Adams, and John Adams. By this sub-committee the task was committed to John Adams, who performed it. To them the draught was first submitted, and they accepted it, with one or two trifling erasures. It was then reported to the grand committee, who made some alterations. The preparation of a declaration of rights was intrusted by the general committee to Mr. Adams alone. It was reported by him, with the exception of the third article, upon which he could not satisfy his own judgment.1

At the present moment, it is impossible to define the precise extent of the modifications made of Mr. Adams’s draught, in the report as finally presented to the convention. So little attention was paid to the preservation of any of the papers, that not only the first draught is not to be found in the archives of the State, but even a copy of the report, as printed for the use of the members, was not there, when the committee, appointed by the legislature of 1832, to superintend the publication of the Journal of the Convention, undertook the task. Neither did they succeed in obtaining one from elsewhere, however necessary to the usefulness of their undertaking, until the body of their work had gone to press. It is sufficient for the present purpose, however, to know that, in its leading features, and in most of its language, the plan of Mr. Adams is preserved in the report. Even the most marked changes, which in later life, his recollection imputed to the action of the committee, now appear, by the report, not to have been made by them, but by the convention itself.

Considering all these circumstances, as well as the entire coincidence of the leading features of the system with the views of his whole life, it is fair to infer, that the paper was so far the product of his mind, as to merit a place in these volumes of his works.

That this was the idea which Mr. Adams himself had at the time is certain. For, in a letter dated 7 June, 1780, that is, immediately after the constitution had been ratified by the people, and addressed to Mr. Edmund Jenings, he sums up the matter thus: “I was chosen by my native town into the convention two or three days after my arrival. I was, by the convention, put upon the committee; by the committee, upon the sub-committee; so that I had the honor to be principal engineer. The committee made some alterations, as, I am informed, the convention have made a few others, in the report; but the frame and essence and substance is preserved.”

Of the care and attention devoted to perfecting the constitution, he says, in another letter: “There never was an example of such precautions as are taken by this wise and jealous people in the formation of their government. None was ever made so perfectly upon the principle of the people’s rights and equality. It is Locke, Sidney, and Rousseau and De Mably reduced to practice, in the first instance. I wish every step of their progress printed and preserved.” Yet, if reliance can be placed upon a statement made by Dr. Gordon in the newspapers, he was not of those who held that absolute perfection could ever be reached; or that what had been done in one age might not be susceptible of improvement, by adaptation to the altered condition of things, in another.2

In considering this paper, the circumstances under which it was prepared should not be overlooked. Until the adoption of the federal constitution, the states were generally regarded as sovereignties, associated in a league for certain purposes not materially impairing their independent character. In these it was supposed that ambition would find its principal field. A form of government for one of these commonwealths was to be matured, with all the care and all the precautions against well-known dangers, that could be required in the greatest and most complicated case of an independent society. The subsequent transfer to the national government of all the great attributes of sovereignty, which occasion those dangers and difficulties, has materially affected the importance of the state constitutions. With the removal of the great objects of human ambition to another sphere, it is not more difficult to form a good practical system of government for a State than for a village or a family. This must account for the easy working of all the forms which have since been adopted by the respective States of the Union, however opposite in their character, and whatever may be the soundness of the objections that can be raised against some parts of them. The agitations of the system rarely shake it deeply, because they are deadened by the stronger power brought to bear from without. Hence, the careful limitations of the executive, the legislative, and the judicial power, to be found in the constitution of Massachusetts, are to be examined as parts of a separate system, standing or falling upon its own merits, rather than as subsidiary instruments of a greater machine, in which the interests and passions of men find their ultimate point of concentration. For the purposes of science, Massachusetts must, in this case, be regarded as the type of all independent, civilized communities, to which it is designed to present a model of government adapted to secure the great ends of human society.

In the following pages the effort is made, not simply to give such a model, as is supposed to have been mainly shaped by Mr. Adams, but also to trace the changes which it underwent after it left his hands. It will appear that modifications, which deserve the name of improvements, were adopted under the influence of the great practical and professional abilities freely applied to the subject in the deliberations of the convention. Moreover, the changes that have been made, in the course of seventy years that the system has been in operation, are all noted, in such a manner as to furnish a connected view of the progress of opinion under a popular form of government during that period. Upon such data as these can alone be formed any just inferences as to the perpetuity of free institutions. The subject is one which has not yet been dealt with in a truly philosophical sense in America, though it opens a wider field of analytical investigation than any other presented by its history.

In examining this part of the work it will be necessary to keep in mind, that the text is that of the Report made by the committee of the convention, and prepared for them by Mr. Adams. The passages inclosed within brackets are those which were entirely erased by the convention. Those marked by Italic letters are such as underwent changes; the exact substitutes are supplied in notes to the respective places. Wherever a blank occurs, the note will indicate the words inserted in the form as finally adopted. The amendments engrafted by the later convention of 1820, as well as subsequently, under the authority created by that assembly, are appended to those sections and articles which they respectively affect.

THE REPORT OF A CONSTITUTION, OR FORM OF GOVERNMENT, FOR THE COMMONWEALTH OF 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 measures necessary for their safety, happiness, and prosperity.

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 delegates of] the people of Massachusetts, [in general convention assembled, for the express and sole purpose of framing a constitution, or form of government, to be laid before our constituents, according to their instructions,] acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording to this people,1 in the course of His providence, an opportunity of entering into an original, explicit, and solemn compact with each other, deliberately and peaceably, without fraud, violence, or surprise;2 and of forming a new constitution of civil government for themselves3 and [their] posterity; and devoutly imploring His direction in a design so interesting4 [to them and their posterity,]—do, [by virtue of the authority vested in us by our constituents,] agree upon NA5 the following Declaration of Rights, and Frame of Government, as the CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS.

[CHAPTER I.]6

A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OF MASSACHUSETTS.

Art. I. All men are born [equally] free and independent,7 and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting [their] property; in fine, that of seeking and obtaining their safety and happiness.

II. It is the NA1 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 subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner NA2 most agreeable to the dictates of his own conscience; or, for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.

III. [Good morals being necessary to the preservation of civil society; and the knowledge and belief of the being of GOD, His providential government of the world, and of a future state of rewards and punishment, being the only true foundation of morality, the legislature hath, therefore, a right, and ought to provide, at the expense of the subject, if necessary, a suitable support for the public worship of GOD, and of the teachers of religion and morals; and to enjoin upon all the subjects an attendance upon their instructions at stated times and seasons; provided there be any such teacher on whose ministry they can conscientiously and conveniently attend.]3

All moneys paid by the subject to the support of public worship, and of the instructors in religion and morals,1 shall, if he require it, be uniformly applied to the support of the NA2 teacher or teachers of his own religious NA3 denomination, if there be such whose ministry he attends upon;4 otherwise it may be paid to5 the teacher or teachers of the parish or precinct where he usually resides.6NA [7 ]

IV. The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which are1 not, or may not hereafter be by them expressly delegated to the United States of America, in congress assembled.

V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.2

VI. No man, nor corporation or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title, being in nature neither hereditary nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.1

VII. 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 indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it.2

VIII. In order to prevent those who are vested with authority from becoming oppressors, the people have a right, at such periods and in such manner as may be delineated in3 their frame of government, to cause their public officers to return to private life, and to fill up vacant places by certain and regular elections NA4

IX. All elections ought to be free; and all the [male] inhabitants of this commonwealth, having sufficient qualifications,5 have an equal right to elect officers, and to be elected, for public employments.

X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; and to give his personal service, or an equivalent, when necessary. But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. NA6

XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws.

XII. No subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally described to him. He cannot1 be compelled to accuse [himself,] or [to] furnish evidence against himself; and every subject shall have a right to be fully heard in his defence, by himself or his counsel at his election; to meet the witnesses against him face to face; to produce all proofs that may be favorable to him;2 [to require a speedy and public trial by an impartial jury of the country, without whose unanimous consent, or his own voluntary confession, he cannot finally be declared guilty, or sentenced to loss of life, liberty, or property.]3

XIII. In criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen.

[XIV.]3 No subject [of the commonwealth] shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.

XIV. [XV.] Every man4 has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases and with the formalities prescribed by the laws.

XV. [XVI.] In all controversies concerning property, and in all suits between two or more persons, NA1 the parties have a right to a trial by [a] jury; and this method of procedure shall be held sacred; unless in causes arising on the high seas, and such as relate to mariners’ wages, the legislature shall hereafter find it necessary to alter it.

XVI. [XVII.]The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained.2

XVII. [XVIII.] The people have a right to keep and to bear arms for the common defence. And as in time of peace [standing] armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

XVIII. [XIX.] A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives. And they have a right to require of their lawgivers and magistrates an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.

XIX. [XX.] The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and the grievances they suffer.

XX. [XXI.] The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for; [and there shall be no suspension of any law for the private interest, advantage, or emolument, of any one man, or class of men.]

XXI. [XXII.] The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.

XXII. [XXIII.] The legislature ought frequently to assemble for the redress of grievances, for correcting, strengthening, and confirming the laws, and for making new laws as the common good may require.

XXIII. [XXIV.] No subsidy, charge, tax, impost, or duties ought to be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature.

XXIV. [XXV.] Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government.

XXV. [XXVI.] No man1 ought in any case, or in any time, to be declared guilty of treason or felony by [any act of] the legislature.

XXVI. [XXVII.] No magistrate or court of law shall demand excessive bail, or sureties, impose excessive fines, or inflict cruel or unusual punishments.

XXVII. [XXVIII.] In time of peace, no soldier ought to be quartered in any house without the consent of the owner; and in time of war, such quarters ought not to be made, but by the civil magistrate in a manner ordained by the legislature.

XXVIII. [XXIX.] No person can in any case be subjected to law martial, or to any penalties or pains by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature.

XXIX. [XXX.] It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people and of every citizen, that the judges2 should hold their offices as long as they behave themselves well, and that they should have honorable salaries ascertained and established by standing laws.

XXX. [XXXI.]The judicial department of the state ought to be separate from, and independent of, the legislative and executive powers.1

[CHAPTER II.2 ]

THE FRAME OF GOVERNMENT.

The people inhabiting the territory heretofore3 called the Province of Massachusetts Bay, do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or State, by the name of THE COMMONWEALTH OF MASSACHUSETTS.

In the government of the Commonwealth of Massachusetts, the legislative, executive, and judicial power shall be placed in separate departments, to the end that it might be a government of laws, and not of men.1

[4 ]

SECTION I.

[5 ]

Art. I.The department of legislation shall be formed by two branches, a senate and house of representatives; each of which shall have a negative on the other.

6They2 shall assemble once,7 on the last Wednesday in May, and at such other times as they shall judge necessary, [every year,] NA8 and shall be styled THE GENERAL COURT OF MASSACHUSETTS.

[And the first magistrate shall have a negative upon all the laws, that he may have power to preserve the independence of the executive and judicial departments.]1

III. [II.] The general court shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be held in the name of the commonwealth, for the hearing, trying, and determining of all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes, and things, whatsoever, arising or happening within the commonwealth, or between or concerning persons inhabiting, or residing, or brought within the same; whether the same be criminal or civil, or whether the said crimes be capital or not capital, and whether the said pleas be real, personal or mixt; and for the awarding and making out of execution thereupon. To which courts and judicatories are hereby given and granted full power and authority, from time to time, to administer oaths or affirmations, for the better discovery of truth in any matter in controversy, or depending before them.

IV. [III.] And further, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof; and to name and settle annually, or provide by fixed laws, for the naming and settling all civil officers within the said commonwealth, [such officers excepted] the election and constitution of whom are not hereafter in this Form of Government otherwise provided for; and to set forth the several duties, powers, and limits, of the several civil and military officers of this commonwealth, and the forms of such oaths NA1 as shall be respectively administered unto them for the execution of their several offices and places, so as the same be not repugnant or contrary to this constitution; [and also to impose fines, mulcts, imprisonments, and other punishments;] and to impose and levy proportional and reasonable assessments, rates, and taxes, upon [the persons of] all the inhabitants of, and NA2 within the said commonwealth, [and upon all estates within the same,] NA3 to be issued and disposed of by warrant, under the hand of the governor of this commonwealth for the time being, with the advice and consent of the council, for the public service, in the necessary defence and support of the government of the said commonwealth, and the protection and preservation of the subjects thereof, according to such acts as are or shall be in force within the same [and to dispose of matters and things whereby they may be religiously, peaceably, and civilly governed, protected, and defended.]

And that public1 assessments may be made with equality, there shall be a valuation of estates within the commonwealth taken anew once in every ten years at [the] least,2NA [3 ]

SECTION II.

Senate.

I.There shall be annually elected by the freeholders and other inhabitants of this commonwealth, qualified as in this constitution is provided, forty persons, to be counsellors and senators for the year ensuing their election, to be chosen [in and] by the inhabitants of the districts into which the commonwealth may from time to time be divided by the general court, for that purpose. And the general court, in assigning the numbers to be elected by the respective districts, shall govern themselves by the proportion of the public taxes paid by the said districts;4 and timely make known to the inhabitants of the commonwealth, the limits of each district, and the number of counsellors and senators to be chosen therein; provided that the number of such districts shall be never more than sixteen, nor less than ten.1

And the several counties in this commonwealth shall, until the general court shall determine it necessary to alter said districts, be districts for the choice of counsellors and senators (except that the counties of Dukes County and Nantucket shall form one district for that purpose,) and shall elect the following number for counsellors and senators, namely,—

II. The senate shall be the first branch of the legislature; and the senators shall be chosen in the following manner, namely,—There shall be a meeting on the first Monday in April, annually, forever, of the inhabitants of all the towns3 in the several counties of this commonwealth, to be called by the selectmen, and warned in due course of law, at least seven days before the first Monday in April, for the purpose of electing persons to be senators and counsellors. And at such meetings every male person4 of twenty-one years of age and upwards, resident in such towns one year next preceding the annual election of senators, having a freehold estate within the commonwealth of the annual income of three pounds, or other real or personal estate of the value of sixty pounds, shall have a right to give in his vote for the senators for the district.

The selectmen of the several towns shall preside at such meetings, and shall be under oath, as well as the town-clerk, to preside impartially, according to their best skill and judgment; and to make a just and true return.

The selectmen shall receive the votes of all the inhabitants of such towns,1 qualified to vote for senators, and shall sort and count them in open town meeting, and in presence of the town-clerk, who shall make a fair record, in presence of the selectmen, and in open town meeting, of the name of every person voted for, and of the number of votes against his name; and a fair copy of this record shall be attested by the selectmen and the town-clerk, and shall be sealed up, directed to the secretary of the commonwealth, for the time being, with a superscription, expressing the purport of the contents thereof, and delivered by the town-clerk of such towns to the sheriff of the county in which such town lies, thirty days at least before the last Wednesday in May, annually; or it shall be delivered into the secretary’s office seventeen days at least before the said last Wednesday in May; and the sheriff of each county shall deliver all such certificates by him received into the secretary’s office, seventeen days before the said last Wednesday in May.

And the inhabitants of plantations unincorporated, qualified as this constitution provides, who are or shall be empowered and required to assess taxes upon themselves toward the support of government, shall have the same privilege of voting for counsellors and senators in the plantations where they reside, as town inhabitants have in their respective towns; and the plantation meetings for that purpose shall be held annually, on the same first Monday in April, at such place in the plantations respectively, as the assessors thereof shall direct; which assessors shall have like authority for notifying the electors, collecting and returning the votes, as the selectmen and town-clerks have in their several towns by this constitution. And all other persons living in places unincorporated (qualified as aforesaid) who shall be assessed to the support of government by the assessors of an adjacent town, shall have the privilege of giving in their votes for counsellors and senators, in the town where they shall be assessed, and be notified of the place of meeting by the selectmen of the town where they shall be assessed for that purpose accordingly.

III. And that there may be a due convention of senators on the last Wednesday in May, annually, the governor, with five of the council, for the time being, shall, as soon as may be, examine the returned copies of such records; and fourteen days before the said day he shall issue his summons to such persons as shall appear to be chosen by a majority of voters, to attend on that day, and take their seats accordingly; provided, nevertheless, that, for the first year, the said returned copies shall be examined by the president and five of the council of the former constitution of government; and the said president shall, in like manner, issue his summons to the persons so elected, that they may take their seats, as aforesaid.

IV. The senate [however] shall be the final judge of the elections, returns, and qualifications of their own members, NA1 and shall, on the said last Wednesday in May, annually, determine and declare who are elected by each district to be senators, by a majority of votes. And, in case there shall not appear to be the full number of senators returned, elected by a majority of votes for any district, the deficiency shall be supplied in the following2 manner, namely:—The members of the house of representatives, and such senators as shall be declared elected, shall take the names of twice the number of senators wanting, fromthose who shall be found to have the highest number of votes in such district, and not elected;1 and out of these shall elect, by ballot, a number of senators sufficient to fill up the vacancies in such district. And in this manner all such vacancies shall be filled up in every district of the commonwealth; and in like manner all vacancies in the senate, arising by death, removal out of the state, or otherwise, shall be supplied as soon as may be after such vacancies shall happen.

V. Provided, nevertheless, that no person shall be capable of being elected as a senator, who is not [of the Christian religion, and]2 seised in his own right of a freehold within this commonwealth, of the value of three hundred pounds at least, NA3 and who has not been an inhabitant of this commonwealth for the space of seven4 years, [three of which] immediately preceding his election, and NA5 in the district for which he shall be chosen.

VI. The senate shall have power to adjourn themselves, provided such adjournments do not exceed two days at a time.

VII. The senate shall choose its own president, appoint its own officers, and determine its own rules of proceeding[s].

VIII. The senate shall be a court, with full authority to hear and determine all impeachments made by the house of representatives, against any officer or officers of the commonwealth, for misconduct and maladministration in their offices. But previous to the trial of every impeachment, the members of the senate shall respectively be sworn, truly and impartially to try and determine the charge in question, according to evidence. Their judgment, however, shall not extend farther than to removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit under this commonwealth. But the party so convicted shall be, nevertheless, liable to indictment, trial, judgment, and punishment, according to the laws of the land.1

SECTION III.

House of Representatives.

I.There shall be in the legislature of this commonwealth a representation of the people annually elected, and founded in2 equality.

II. And, in order to provide for a representation of the citizens of this commonwealth, founded upon the principle of equality, every corporate town, containing one hundred and fifty ratable polls, may elect one representative. Every corporate town, containing three hundred and seventy-five ratable polls, may elect two representatives. Every corporate town, containing six hundred ratable polls, may elect three representatives; and proceeding in that manner, making two hundred and twenty-five ratable polls the mean increasing number for every additional representative.

[And forever, hereafter, the least number of ratable polls necessary to entitle a corporate town to elect one representative, when increased by the addition of a number equal to half the said least number, shall be the mean increasing number of ratable polls for every additional representative any corporate town may elect.

And, to prevent hereafter the house of representatives from becoming unwieldy, and incapable of debating and deliberating, by the great additions it would continually receive from the increasing settlement and population of this commonwealth, no corporate town shall, from and after the year of our Lord, one thousand seven hundred and ninety, be entitled to elect one representative, unless it shall contain two hundred ratable polls; nor to elect two representatives, unless it shall contain five hundred ratable polls; nor to elect three representatives, unless it shall contain eight hundred ratable polls; and so proceeding in that manner, making, by the aforesaid rule, three hundred ratable polls the mean increasing number for every additional representative. And every tenth year, from and after the said year of our Lord, one thousand seven hundred and ninety, and until such time as the number of representatives which may be elected for this commonwealth shall not exceed the number of two hundred, the least number of ratable polls which, at that time, any corporate town must contain to entitle it to elect one representative, shall be increased by the addition of fifty; and the least number aforesaid, thus increased by the said addition, shall be the number of ratable polls any corporate town must contain to entitle it to elect one representative; and the number of representatives any corporate town may elect shall be regulated accordingly, by the rules aforesaid.

The freeholders and other inhabitants of this commonwealth, qualified to vote for representatives, living in corporate towns, which, severally, shall contain a less number of ratable polls than is necessary to entitle them, respectively, to elect one representative, shall, nevertheless, have a right to associate with some town or towns adjoining, for the election of representatives; and, in such cases, the voters thus united, shall have a right to elect the same number of representatives as they would have done were they inhabitants of one corporate town; which representatives may be elected out of either of the associated towns, indifferently. And the legislature shall, from time to time, determine what towns shall thus associate, the manner of the association, and the method and manner of calling and conducting the meetings of the associated towns for the election of representatives.]1

III.The members1 of the house of representatives shall be chosen by written votes; [and no person shall be qualified or eligible to be a member of the said house, unless he be of the Christian religion,] and, for one year at least, next preceding his election, shall have been an inhabitant of, and have been seised in his own right of a freehold of the value of one hundred pounds, within the town [or towns] he shall be chosen to represent; NA1 and he shall cease to represent the said town [or towns] immediately on his ceasing to be a freeholder within the same.2

IV. Every male person, being twenty-one years of age, and resident in any particular town in this commonwealth for the space of one year next preceding, having a freehold estate within the same town, of the annual income of three pounds, or other3 estate [real or personal or mixt] of the value of sixty pounds, shall have a right to vote in the choice of a representative or representatives for the said town, [or for the towns united as aforesaid.]4

V. The members of the house of representatives shall be chosen annually in the month of May, ten days at least before the last Wednesday of that month, [from among the wisest, most prudent, and virtuous of the freeholders.]

VI. The house of representatives shall be the grand inquest of this commonwealth; and all impeachments made by them shall be heard and tried by the senate.

VII. All money-bills shall originate in the house of representatives; but the senate may propose or concur with amendments, as on other bills.

VIII. The house of representatives shall have power to adjourn themselves; provided such adjournment shall not exceed two days at a time.

IX. Not less than sixty members of the house of representatives shall constitute a quorum for doing business.

X. The house of representatives shall NA1 choose their own speaker, appoint their own officers, and settle the rules and orders of proceeding in their own house. They shall have authority to punish, by imprisonment, every person NA2 who shall be guilty of disrespect to the house, in its presence, by any disorderly or contemptuous behavior; or by threatening or ill-treating any of its members; or, in a word, by obstructing its deliberations; every person guilty of a breach of its privileges, in making arrests for debts, or by assaulting one of its members during his attendance at any session, or on the road, whether he be going to the house or returning home; in assaulting any one of its officers, or in disturbing him in the execution of any order or procedure of the house; in assaulting or troubling any witness or other person ordered toattend the house, in his way in going or returning, or in rescuing any person arrested by order of the house.1

XI. The senate shall have the same powers in the like cases; and the governor and council shall have the same authority to punish in like cases. Provided, that no imprisonment on the warrant or order of the governor, council, senate, or house of representatives, for either of the above described offences, be for a term exceeding thirty days.2

CHAPTER II. [III.]

Executive Power.

SECTION I.

Governor.

Art. I.There shall be a supreme executive magistrate, who shall be styled, THE GOVERNOR OF THE COMMONWEALTH OF MASSACHUSETTS, and whose title shall be, HIS EXCELLENCY.

II. The governor shall be chosen annually; and no person shall be eligible to this office unless, at the time of his election, he shall have been an inhabitant of this commonwealth for seven years next preceding; and unless he shall at the same time be seised in his own right of a freehold within the commonwealth, of the value of one thousand pounds; and unless he shall3NA be of the Christian religion.

III. Those persons who shall be qualified to vote for senators and representatives within the several towns of this commonwealth, shall, at a meeting to be called for that purpose, on the first Monday of April annually, give in their votes for a governor, to the selectmen, who shall preside at such meetings; and the town clerk, in the presence and with the assistance of the selectmen, shall in open town meeting sort and count the votes, and form a list of the persons voted for, with the number of votes for each person against his name, and shall make a fair record of the same in the town books, and a public declaration thereof in the said meeting; and shall, in the presence of the inhabitants, seal up copies of the said list, attested by him and the selectmen, and transmit the same to the sheriff of the county, thirty days at least before the last Wednesday in May; or shall1 cause returns of the same to be made to the office of the secretary of the commonwealth, seventeen days at least before the said day, who2 shall lay the same before the senate and the house of representatives, on the last Wednesday in May, to be by them examined; and, in case of an election by a majority of votes through the commonwealth,3 the choice shall be by them declared and published. But if no person shall have a majority of votes, the house of representatives shall, by ballot, elect two out of four persons who had the highest number of votes, if so many shall have been voted for, but if otherwise, out of the number voted for; and make return to the senate of the two persons so elected, on which the senate shall proceed, by ballot, to elect one, who shall be declared governor.

[IV.] [4 ] (Transposed.)

IV. [V.] The governor shall have authority, from time to time, at his discretion, to assemble and call together the counsellors of this commonwealth, for the time being; and the governor, with the said counsellors, or five of them at least, shall and may, from time to time, hold and keep a council for the ordering and directing the affairs of the commonwealth according to law.1

V. [VI.] The governor, with advice of council, shall have full power and authority, in the recess of the general court, to prorogue the same from time to time, not exceeding ninety days in any one recess of the said court; and during the session of the said court, to adjourn or prorogue it to any time the two houses shall desire, and to dissolve the same, at their request, or on the Wednesday next preceding the last Wednesday in May; and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the commonwealth shall require the same.2

VI. [VII.] In cases of disagreement between the two houses, with regard to the NA3 time of adjournment or prorogation, the governor, with advice of the council, shall have a right to adjourn or prorogue the general court, NA4 as he shall determine the public good shall require.

VII. [VIII.] The governor of this commonwealth, for the time being, shall be the commander-in-chief of the army and navy, and of all the military forces of the state by sea and land; and shall have full power, by himself or by any [chief] commander, or other officer or officers, [to be appointed by him,] from time to time to train, instruct, exercise, and govern the militia and navy; and for the special defence and safety of the commonwealth, to assemble in martial array and put in warlike posture, the inhabitants thereof; and to lead and conduct them, and with them to encounter, [expulse,] repel, resist, NA5 and pursue, by force of arms, as well by sea as by land, within or without the limits of this commonwealth, and also to kill, slay, destroy, NA1 and conquer, by all fitting ways, enterprises, and means whatsoever, all and every such person and persons as shall at any time hereafter, in a hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of this commonwealth; and to use and exercise over the army and navy, and over the militia in actual service, the law martial in time of war, invasion, or rebellion,NA2 as occasion shall necessarily require; [and also from time to time to erect forts, and to fortify any place or places within the said commonwealth, and the same to furnish with all necessary ammunition, provisions, and stores of war, for offence or defence, and to commit from time to time the custody and government of the same to such person or persons as to him shall seem meet; and in times of emergency the said forts and fortifications to demolish at his discretion;] and to take and surprise, by all ways and means whatsoever, all and every such person or persons, with their ships, arms, ammunition, and other goods, as shall in a hostile manner invade, or attempt the invading, conquering, or annoying this commonwealth, and [in fine] that the governor be intrusted with all NA3 other powers, incident to the offices of captain-general and commander-in-chief and admiral, to be exercised agreeably to the rules and regulations of the constitution and the laws of the land NA4

Provided, that the said governor shall not at any time hereafter, by virtue of any power by this constitution granted, or hereafter to be granted to him by the legislature, transport any of the inhabitants of this commonwealth, or oblige them to march, out of the limits of the same, without their free and voluntary consent, or the consent of the general court, NA5 [nor grant commissions for exercising the law martial upon any of the inhabitants of this commonwealth, without the advice and consent of the council of the same.]

VIII. [IX.] The power of pardoning offences, except such as persons may be convicted of before the senate by an impeachment of the house, shall be in the governor, by and with the advice of council. But no charter of pardon granted by the governor, with advice of the council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offence or offences intended to be pardoned.

IX. [X.] All judicial officers, the attorney-general, the solicitor-general, all sheriffs, coroners, registers of probate, [and registers of maritime courts,] shall be nominated and appointed by the governor, by and with the advice and consent of the council; and every such nomination shall be made by the governor, and made at least seven days prior to such appointment.

[XI.] [All officers of the militia shall be appointed by the governor, with the advice and consent of the council; he first nominating them seven days at least before the appointment.]1

XI. [XII.]All1 moneys shall be issued out of the treasury of this commonwealth, and disposed of NA2 by warrant, under the hand of the governor for the time being, with the advice and consent of the council, for the necessary defence and support of the commonwealth; and for the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court.

XII. [XIII.] All public boards, the commissary-general, all superintending officers of public magazines and stores, belonging to this commonwealth, and all commanding officers of forts and garrisons within the same, shall, once in every three months officially, and without requisition, and at other times, when required by the governor, deliver to him an account of all goods, stores, provisions, ammunition, cannon with their appendages, and small arms with their accoutrements, and of all other public property whatever under their care respectively; distinguishing the quantity, number, quality, and kind of each, as particularly as may be; together with the condition of such forts and garrisons. And the said commanding officers shall exhibit to the governor, when required by him, true and exact plans of such forts, and of the land and sea, or harbor or harbors, adjacent.

And the said boards, and all public officers, shall communicate to the governor, as soon as may be after receiving the same, all letters, despatches, and intelligences, of a public nature, which shall be directed to them respectively.

[XIV. And to prevent an undue influence in this commonwealth, which the first magistrate thereof may acquire, by the long possession of the important powers and trusts of that office; as also to stimulate others to qualify themselves for the service of the public in the highest stations, no man shall be eligible as governor of this commonwealth, more than five years in any seven years.]1

XIII. [XV.] As the public good requires that the governor should not be under the undue influence of any of the members of the general court, by a dependence on them for his support; that he should, in all cases, act with freedom for the benefit of the public; that he should not have his attention necessarily diverted from that object to his private concerns; and that he should maintain the dignity of the commonwealth, in the character of its chief magistrate, it is necessary that he should have an honorable stated salary, of a fixed and permanent value, amply sufficient for those purposes, and established by standing laws; and it shall be among the first acts of the general court, after the commencement of this constitution, to establish such salary by law accordingly.

Permanent and honorable salaries shall also be established by law for the justices of the superior2 court.

And if it shall be found that any of the salaries aforesaid, so established, are insufficient, they shall from time to time be enlarged, as the general court shall judge proper.

SECTION II.

Lieutenant-Governor, [and the ascertaining the Value of the Money mentioned in this Constitution, as Qualifications to Office, &c.]

I.There shall be annually elected a lieutenant-governor of the Commonwealth of Massachusetts, whose title shall be HIS HONOR, and who shall be qualified, in point of religion, property, and residence in the commonwealth, in the same manner with the governor. He shall be chosen on the same day, in the same manner, and by the same persons.1 The return of the votes for this officer, and the declaration of his election shall be in the same manner. And if no one person shall be found to have a majority of votes,2 the vacancy shall be filled by the senate and house of representatives, in the same manner as the governor is to be elected, in case no one person has3 a majority of votes4 to be governor.

II.The lieutenant-governor shall always be, ex-officio, a member, and, in the absence of the governor, president, of the council.5

III. Whenever the chair of the governor shall be vacant, by reason of his death, or absence from the commonwealth, or otherwise, the lieutenant-governor, for the time being, shall, during such vacancy, NA6 have and exercise all the powers and authorities which, by this constitution, the governor is vested with, when personally present.

[IV. and V.] (Transposed. See Chapter VI. p. 264.)

SECTION III.

Council, and the Manner of settling Elections by the Legislature; [Oaths to be taken, &c.]

I.There shall be a council for advising the governor in the executive part of government, to consist of nine persons besides the lieutenant-governor, whom the governor, for the time being, shall have full power and authority, from time to time, at his discretion, to assemble and call together. And the governor, with the said counsellors, or five of them at least, shall and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, according to the laws of the land.

II. Nine counsellors shall out of1 the persons returned for counsellors and senators, [be annually chosen,] on the last Wednesday in May, by the joint ballot of the senators and representatives assembled in one room. NA2 The seats of the persons thus elected into the council3 and accepting the trust, shall be vacated in the senate, [and, in this manner, the number of senators shall be reduced to thirty-one.]4

III. The counsellors, in the civil arrangements of the commonwealth, shall have rank next after the lieutenant-governor.

IV. Not more than two counsellors shall be chosen out of any one county5 of this commonwealth.

V. The resolutions and advice of the council shall be recorded in a register, and signed by the members present; and this record may be called for at any time by either house of the legislature; and any member of the council may insert his opinion contrary to the resolution of the majority.

VI. Whenever the office of the governor and lieutenant-governor shall be vacant, by reason of death, absence, or otherwise, then the council, or the major part of them, shall, during such vacancy, have full power and authority to do and execute all and every such acts, matters, and things, as the governor or the lieutenant-governor might or could, by virtue of this constitution, do or execute, if they, or either of them, were personally present.

VII. And whereas, the elections appointed to be made by this constitution, on the last Wednesday in May, annually, by the two houses of the legislature, may not be completed on that day, the said elections may be adjourned from day to day, until the same shall be completed. And the order of elections shall be as follows,—the vacancies in the senate, if any, shall first be filled up; the governor and lieutenant-governor shall then be elected, provided there should be no choice of them by the people; and afterwards the two houses shall proceed to the election of the council.

[VIII.] (Transposed. See Chapter VI. p. 262.)

SECTION IV.

Secretary, Treasurer, Commissary, &c.

I.The secretary, treasurer, and receiver-general, and the commissary-general, notaries-public, and naval officers shall be chosen annually, by joint ballot of the senators and representatives, in one room. And that the citizens of this commonwealth may be assured, from time to time, that the moneys remaining in the public treasury, upon the settlement and liquidation of the public accounts, are their property, no man shall be eligible as treasurer and receiver-general more than five years successively.1

II. The records of the commonwealth shall be kept in the office of the secretary, who NA1 shall attend the governor and council, the senate, and house of representatives in person, or by his deputies, as they shall respectively require.

CHAPTER III. [IV.]

Judiciary Power.

Art. I.The tenure, that all commission officers by law hold2 in their offices, shall be expressed in their respective commissions. All judicial officers, duly appointed, commissioned, and sworn, shall hold their offices during good behavior NA3 provided, nevertheless, the governor, with consent of the council, may remove them upon the address of both houses of the legislature. [And all other officers, appointed by the governor and council, shall hold their offices during pleasure.]

[II.] (Transposed. See Chapter VI. p. 263.)

II. [III.]The senate, nevertheless,4 as well as the governor and council, shall have authority to require the opinions of the judges5 upon important questions of law, and upon solemn occasions.

III. [IV.] In order that the people may not suffer from the long continuance in place of any justice of the peace, who shall fail of discharging the important duties of his office with ability or fidelity, all commissions of justices of the peace shall expire and become void, in the term of seven years from their respective dates; and, upon the expiration of any commission, the governor and council may, if necessary, renew such commissions, or appoint another person,1 as shall most conduce to the well-being of the commonwealth.

IV. [V.] The judges of probate of wills and for granting letters of administration, shall hold their courts at such place or places, on fixed days, as the convenience of the people shall require. And the legislature shall, from time to time, hereafter, appoint such times and places; until which appointments, the said courts shall be holden at the times and places which the respective judges shall direct.

V. [VI.] All causes of marriage, divorce, and alimony, [shall be determined by the senate;] and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.2

CHAPTER IV. [V.]

Delegates to Congress, [Commissions, Writs, Indictments, &c.; Confirmation of Laws, Habeas Corpus, and enacting Style.]

Art. I. The delegates of this commonwealth to the Congress of the United States [of America,] shall, on the second Wednesday of November, if the general court be then sitting, or on the second Wednesday of the session next after,3 be elected annually, by the joint ballot of the senate and house of representatives, assembled together in one room NA4 They shall have commissions under the hand of the governor, and under the great seal of the commonwealth; but may be recalled at any time within the year, and others chosen and commissioned, in the same manner in their stead.5

CHAPTER V. [VI.]

The University at Cambridge, and Encouragement of Literature, &c.

SECTION I.

The University.

Art. I.Whereas our wise and pious aucestors, so early as the year one thousand six hundred and thirty-six, laid the foundation of Harvard College, in which university many persons of great eminence have by the blessing of God been initiated in those arts and sciences which qualified them for public employments, both in church and state. And whereas the encouragement of arts and sciences, and all good literature, tends to the honor of God, the advantage of the Christian religion, and the great benefit of this and the other United States of America,—it is declared, That the PRESIDENT and FELLOWS of HARVARD COLLEGE, in their corporate capacity, and their successors in that capacity, their officers and servants, shall have, hold, use, exercise, and enjoy, all the powers, authorities, rights, liberties, privileges, immunities, and franchises, which they now have, or are entitled to have, hold, use, exercise, and enjoy; and the same are hereby ratified and confirmed unto them, the said President and Fellows of Harvard College, and to their successors, and to their officers and servants, respectively, forever.

II. And whereas there have been at sundry times, by divers persons, gifts, grants, devises, of houses, lands, tenements, goods, chattels, legacies, and conveyances, heretofore made, either to Harvard College, in Cambridge, in New England, or to the President and Fellows of Harvard College, or to the said College, by some other description, under several charters successively;—IT IS DECLARED, That all the said gifts, grants, devises, legacies, and conveyances, are hereby forever confirmed unto the President and Fellows of Harvard College, and to their successors, in the capacity aforesaid, according to the true intent and meaning of the donor or donors, grantor or grantors, devisor or devisors.

1III. And whereas, by an act of the general court of the colony of Massachusetts Bay, passed in the year one thousand six hundred and forty-two, the governor and deputy governor for the time being, and all the magistrates of that jurisdiction, were, with the president, and a number of the clergy, in the said act described, constituted the overseers of Harvard College. And it being necessary, in this new constitution of government, to ascertain who shall be deemed successors to the said governor, deputy-governor, and magistrates;—IT IS DECLARED, That the Governor, Lieutenant-Governor, Council, and Senate of this Commonwealth, are, and shall be deemed, their successors; who, with the President of Harvard College for the time being, together with the Ministers of the Congregational Churches in the towns of Cambridge, Watertown, Charlestown, Boston, Roxbury, and Dorchester, mentioned in the said act, shall be and hereby are, vested with all the powers and authority belonging, or in any way appertaining to the overseers of Harvard College. Provided, that nothing herein shall be construed to prevent the legislature of this commonwealth from making such alterations in the government of the said university as shall be conducive to its advantage, and the interest of the republic of letters, in as full a manner as might have been done by the legislature of the NA province of the Massachusetts Bay.2

SECTION II.

The Encouragement of Literature, &c.

Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties, and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislators and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings, sincerity, good humor, and all social affections and generous sentiments among the people.1

CHAPTER VI.1

I. (From Chapter III. sect. I. art. 4.) The2 person chosen governor, NA3 and accepting the trust, shall, [in the presence of the two houses, and] before he proceed to execute the duties of his NA1 office, make and subscribe the following declaration, [and take the following oaths, to be administered by the president of the senate,] namely,—

I, A B, [being declared duly elected governor of the commonwealth of Massachusetts,] do [now] declare, that I believe [and profess] the Christian religion, from2 a firm persuasion of its truth; and that I am seised and possessed, in my own right, of the property required by law,3 as one qualification for that office.4NA5 I, A B, do solemnly swear, NA6 [that I bear faith and true allegiance to the commonwealth of Massachusetts;] that I will faithfully and impartially discharge and perform all the duties incumbent on me, as [a governor of this commonwealth,] according to the best of my abilities and understanding, agreeably to the rules and regulations of the constitution, and NA1that I will not attempt or consent to a violation thereof. So help me God.

(From Chapter III. sect. III. art. 8.) [The lieutenant-governor, counsellors, senators, and members of the house of representatives shall, before they enter on the execution of their respective offices, make and subscribe the same declaration, and take the same oath, (mutatis mutandis,) which the governor is directed by this constitution to make, subscribe, and take.]

[And every person appointed to any civil or military office of this commonwealth shall, previous to his entering on the execution of his office, make and subscribe the following declaration, (mutatis mutandis,) namely,—

I, A B, being appointed NA , do now declare, that I believe and profess the Christian religion, from a firm persuasion of the truth thereof.]

[And he shall likewise take an oath of the form following, (mutatis mutandis,)] namely,—

[I, A B, do solemnly swear, that I will bear faith and true allegiance to the commonwealth of Massachusetts; that I will faithfully and impartially discharge and perform all the duties incumbent on me, as NA , according to the best of my abilities and understanding, agreeably to the rules and regulations of the constitution; and that I will not attempt or consent to a violation thereof. So help me God.]

[Provided, notwithstanding, that any person so appointed, who has conscientious scruples relative to taking oaths, may be admitted to make solemn affirmation, under the pains and penalties of perjury, to the truth of the matters contained in the form of the said oath, instead of taking the same.]2

II. (From Chapter IV. art. 2.) [No justice of the superior court of judicature, court of assize, and general jail delivery, shall have a seat in the senate or house of representatives.]1

III. (From Chapter III. sect. II. art. 4.) [“The respective values assigned by the several articles of this constitution to the property necessary to qualify the subjects of this commonwealth to be electors, and also to be elected into the several offices, for the holding of which such qualifications are required, shall always be computed in silver, at the rate of six shillings and eight pence per ounce.”]1

(From Chapter III. sect. II. art. 5.) And it shall be in the power of the legislature, from time to time, to increase such qualifications, NA2 of the persons to be elected to offices, as the circumstances of the commonwealth shall require.

IV. (From Chapter V. art. 2.) All commissions shall be in the name of the commonwealth of Massachusetts, signed by the governor, and attested by the secretary or his deputy, and have the great seal of the commonwealth affixed thereto.

V. (From Chapter V. art. 3.) All writs issuing out of the clerk’s office in any of the courts of law, shall be in the name of the commonwealth of Massachusetts. They shall be under the seal of the court from whence they issue. They shall bear test of the [chief justice, or] first [or senior] justice of the court, to which they shall be returnable, NA1 and be signed by the clerk of such court.”

VI. (From Chapter V. art. 5.) All the [statute] laws [of the province, colony, or state of Massachusetts Bay, the common law, and all such parts of the English or British statutes as] have2 been adopted, used, and approved in the [said] province, colony, or state, NA3 and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution.

VII. (From Chapter V. art. 6.) The privilege and benefit of the writ of habeas corpus shall be enjoyed in this commonwealth in the most free, easy, cheap, expeditious, and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a [short and] limited time, NA4

VIII. (From Chapter V. art. 7.) The enacting style, in making and passing all acts, statutes, and laws, shall be: “Be it enacted, by [his excellency the governor,] the senate, and house of representatives, in general court assembled, and by the authority of the same;” [or “By his honor the lieutenant-governor,” &c.; or “The honorable the council,” &c., as the case may be.]

[CHAPTER VII. AND LAST.]1

[Continuance of Officers, &c.]

IX. To the end there may be no failure of justice, or danger arise to the commonwealth from a change of the form of government, all officers, civil and military, holding commissions under the government and people of Massachusetts Bay in New England, and all other officers of the said government and people, at the time this constitution shall take effect, shall have, hold, use, exercise, and enjoy all the powers and authority to them granted or committed, until other persons shall be appointed in their stead. And all courts of law shall proceed in the execution of the business of their respective departments; and all the executive and legislative officers, bodies, and powers, shall continue in full force, in the enjoyment and exercise of all their trusts, employments, and authority, until the general court, and the supreme and executive officers, under this constitution, are designated, and invested with their respective trusts, powers, and authority.

[1 ]Vol. iii. pp. 12, 24.

[1 ]These facts are taken from a letter of J. A. to W. D. Williamson, dated 25 February, 1812.

[2 ]“I have heard, that the Hon. John Adams, Esquire, delivered an excellent speech, soon after the meeting of the convention, the purport of which was to show, that it was impossible for human wisdom to form a plan of government that should suit all future emergencies, and that, therefore, periodical revisions were requisite.”

See the Address to the Freemen of Massachusetts, by William Gordon, in the Independent Chronicle, 4 May, 1780. The same speech was referred to by Mr. Dawes, in the Convention of 1820, who said he heard it. Journal of Debates and Proceedings, p. 194.

[1 ]“us,”

[2 ]The two clauses in Italics transposed.

[3 ]“ourselves”

[4 ]“so interesting a design,”

[5 ]“ordain and establish”

[6 ]PART THE FIRST.

[7 ]“equal.” The language of this article, as reported, is nearly the same with that of the first article of the Bill of Rights of Virginia.

[1 ]“right as well as the”

[2 ]“and season”

[3 ]This clause was not at all satisfactory to the convention. After several days spent in discussion, and the proposal of various amendments, the subject was recommitted to a committee of seven persons, with the Reverend Mr. Alden as the chairman, who reported this substitute, which was finally adopted, in an amended form, and after long debates:—

“III. As the happiness of a people, and the good order and preservation of a civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of GOD, and of public instruction in piety, religion, and morality,—therefore, to promote their happiness, and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require the several towns, parishes, precincts, and other bodies politic or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.

“And the people of this commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subjects, an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend.

“Provided, notwithstanding, that the several towns, parishes, precincts, and other bodies politic, or religious societies, shall, at all times, have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance.”

[1 ]“public teachers aforesaid,”

[2 ]“public”

[3 ]“sect or”

[4 ]“provided there be any on whose instruction he attends;”

[5 ]“towards the support of”

[6 ]“in which the said moneys are raised.”

[7 ]A new clause was appended to this article by the convention, as follows:—

“And every denomination of Christians, demeaning themselves peaceably and as good subjects of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.”

It has already been remarked, that the third article, as it appears in the original report, was not made by Mr. Adams. In a letter written long afterwards, to Mr. Williamson, the historian of Maine, he gives, as a reason, “that he could not satisfy his own judgment with any article that he thought would be accepted; and, further, that some of the clergy, and graver persons than himself, would be more likely to hit the taste of the public.”

The amended form of the article is said, in the address of the convention to the people, to have been “finally agreed upon, with much more unanimity than usually takes place in disquisitions of this nature.” It was not, however, adopted without strong and vehement remonstrance, which was again manifested at the time of the popular ratification, and it never was quietly acquiesced in afterwards. Indeed, it may truly be said to be the only portion of the constitution which furnished a constant topic of dispute, until finally abandoned in 1833. The reason is obvious enough. Professing carefully to secure an equality among Christians of all denominations, it did yet, in practice, give a decided advantage to one sect over the rest. In this respect, a marked difference is perceptible between the original and the amended form of the article. The former broadly embraces men of all classes of religious belief, including the Catholic on one side, and the Deist on the other; and, doubtless, this was one of the most serious grounds of objection to it. For, even in the meagre journal that remains, it appears that, not content with the amended form, limiting the authority of the legislature to require provision to be made by the towns to the maintenance of public Protestant teachers, and confining the moneys to be raised to the support of such teachers, amendments were pressed, specifically excepting “Papists,” and “Christians whose principles are repugnant to the constitution,” or, “whose avowed principles are inconsistent with the peace and safety of society,” from “the protection of the law.” These amendments did not prevail, it is true; but the steadiness with which they were urged, is one among many indications here visible, how gradually the old puritan feeling was receding before the modern movement of religious equality.

The grievance to which this article gave rise was that, in addition to compulsory taxation, there were many cases in which the property of persons became liable to be used, against their will, for the benefit of forms of religious faith which they most disapproved; and latterly, by the construction of the courts, a limitation was made upon the power of selection, even among the churches of the denomination to which the contributor himself belonged. This occasioned so great uneasiness, as at last to require from the legislature of 1811 the passage of a law, designed partially to remedy the evil. The call of a new convention to revise the constitution, made necessary by the separation of Maine in 1819, furnished an opportunity for the revival of the controversy. All the abilities of that somewhat remarkable assembly became enlisted upon one or the other side, until the dispute finally settled into the ordinary form of a question between the old and the new, between conservatism and reform.

Mr. Adams, although at the time infirm, by reason of his great age, he being eighty-five years old, was a member of this convention. Yet on this subject he showed more interest than upon any other. The tendency of his mind will appear most clearly from the following extracts taken from the Report of the Debates:—

“Mr. Parker, of Boston, rose, at the request of the gentleman from Quincy, who was unavoidably absent, to propose that, in the third article of the Declaration of Rights, the words, ‘all men, of all religions, demeaning themselves as good subjects, shall enjoy the equal protection of the laws,’ should be inserted instead of the words, ‘men of every denomination of Christians.’

“Mr. Williams had no special objection to this proposition; but did not think it would meet the wishes of the people of this commonwealth.

“Mr. Parker withdrew the proposition.”

Unable, from physical debility, to attend regularly, and still less to take an active part in the debates, Mr. Adams yet had this point so much at heart, that he made a new effort to get it before the body, at a later moment, as appears from the Journal.

“Mr. Boylston, of Princeton, at the suggestion of Mr. Adams, of Quincy, who was absent, offered a resolution proposing to alter the constitution, so that instead of ‘every denomination of Christians,’ &c. it should read, ‘all men of all religions, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law.”

“Referred to the committee of the whole on the Declaration of Rights.”

On the 28th the resolution was taken up, and the following discussion took place:—

“Mr. Boylston, of Princeton, said, that his object was entirely in a commercial relation. It was intended to invite foreigners to come to our shores, by the offer of equal protection to men of all religious opinions. As the constitution now stands, the offer of protection was confined to persons of the Christian religion.

“Mr. Hubbard read the second article of the Bill of Rights, which he thought made the most ample provision for the object.

“Mr. J. Davis, of Boston, opposed the resolution. He thought it would be better to leave it to legislative discretion. Persons of all religions have, in fact, full and equal protection.

“Mr. Quincy objected to the resolution, because it seemed to imply that persons of all religions were not now under the protection of the law. He showed on what ground he thought the object was fully provided for.

“The resolution was negatived.”

It seems scarcely necessary, at this day, to show how entirely the reasoning of the objectors evaded the question at issue. In all probability the remark of Mr. Williams was correct,—that the popular sentiment was not then ready to carry out the abstract principle, of total separation between church and state, even though it underlies the whole theory of republican government. Yet the very same amendment had been proposed by Dr. Price, in his Observations, published thirty-six years before!

In the convention of 1820, the conservative section, constituted, as it was, of a large proportion of the ability, learning, and weight of character in the commonwealth, prevailed so far as to retain the feature of compulsory taxation for the support of religious worship. But the article which, after great labor and contention, had been shaped in a form to meet the assent of a majority of that assembly, was decisively rejected by the people, when submitted for ratification. The matter remained unsettled from that period until the year 1833, when, through the power of amendment vested by the revised constitution in the action of two successive legislative assemblies, the following article received the assent of the requisite numbers, and was approved by the popular vote. Although it has worked some inconvenient change in the structure of religious societies, it cannot thus far be said to have been attended with those serious evils to the habits of worship which were predicted as about to flow from it:—

“Art. 11. As the public worship of God, and instructions in piety, religion, and morality promote the happiness and prosperity of a people, and the security of a republican government,—therefore, the several religious societies of this commonwealth, whether corporate or unincorporate, at any meeting legally warned and holden for that purpose, shall ever have the right to elect their pastors or religious teachers; to contract with them for their support; to raise money for erecting and repairing houses for public worship, for the maintenance of religious instruction, and for the payment of necessary expenses. And all persons belonging to any religious society shall be taken and held to be members, until they shall file with the clerk of such society a written notice, declaring the dissolution of their membership, and thenceforth shall not be liable for any grant or contract which may be thereafter made or entered into by such society. And 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 subordination of any one sect or denomination to another shall ever be established by law.”

[1 ]“is”

[2 ]This is an amplification of the second article of the Virginia Bill of Rights.

[1 ]The fourth article of the Virginia Bill amplified.

[2 ]The third article of Virginia expanded.

[3 ]“they shall establish by”

[4 ]“and appointments.”

[5 ]“such qualifications as they shall establish by their frame of government,”

[6 ]“And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.”

[1 ]“;or”

[2 ]The last three parts of this sentence were placed by the convention in an order exactly reversed.

[3 ]That which makes the fourteenth article in the report now follows, and is incorporated into the twelfth, with a single amendment, above noted.

The following addition, in lieu of the portion stricken out, completes the article as it appears in the constitution:—

“And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.”

[4 ]“subject”

[1 ]“except in cases in which it has heretofore been otherways used and practised,”

[2 ]This article was recommitted by the convention, when the following substitute was reported and adopted. Much objection was made to it, among the people, as insufficient:—

“XVI. The liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restrained in this commonwealth.”

[1 ]“subject”

[2 ]“of the supreme judicial court”

Extract from the Journal of the Convention.

“After long debate, it was moved and seconded, that the sense of the convention be taken upon the word ‘judges,’ in said article; in order to which a question was moved and seconded, namely,—‘whether it be the sense of this convention, that the judges of the supreme judicial court of this commonwealth, ought to be appointed to hold their office during good behavior;’ which, being put, passed in the affirmative, by seventy-eight out of one hundred and thirteen, (ayes 78, noes 35.)

“It was then moved and seconded, that a question be put: whether it is the opinion of this convention, that the judges of the courts of common pleas, in this commonwealth, ought to be appointed to hold their offices during good behavior; which was accordingly put, and passed in the negative, by fifty-seven out of one hundred and nineteen, (ayes 57, noes 62.)”

This decision was reversed on a subsequent day, by sixty-two out of eighty-six, (ayes 62, nays 24.)

[1 ]XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them, to the end it may be a government of laws and not of men.

[2 ]“PART THE SECOND.”

[3 ]“formerly”

Extract from the Journal.

“On a motion, made and seconded, that the word ‘Massachusetts’ be expunged, and that the word ‘Oceana’ be substituted, the same was put, and passed in the negative.”

[4 ]“Chapter I. The Legislative Power.”

[5 ]The General Court.

[6 ]“The legislative body”

[7 ]“every year

[8 ]“and shall dissolve and be dissolved on the day next preceding the said last Wednesday in May,”

The convention of 1820 changed the beginning of the legislative year to January, as will be seen by the following, which is the tenth amendment adopted by the people:—

Amendment.

Art. 10. The political year shall begin on the first Wednesday of January, instead of the last Wednesday of May; and the general court shall assemble every year on the said first Wednesday of January, and shall proceed, at that session, to make all the elections, and do all the other acts, which are by the constitution required to be made and done at the session which has heretofore commenced on the last Wednesday of May. And the general court shall be dissolved on the day next preceding the first Wednesday of January, without any proclamation or other act of the governor. But nothing herein contained shall prevent the general court from assembling at such other times as they shall judge necessary, or when called together by the governor. The governor, lieutenant-governor, and counsellors, shall also hold their respective offices for one year next following the first Wednesday of January, and until others are chosen and qualified in their stead.

The meeting for the choice of governor, lieutenant-governor, senators, and representatives, shall be held on the second Monday of November in every year; but meetings may be adjourned, if necessary, for the choice of representatives, to the next day, and again to the next succeeding day, but no further. But in case a second meeting shall be necessary for the choice of representatives, such meetings shall be held on the fourth Monday of the same month of November.

All the other provisions of the constitution respecting the elections and proceedings of the members of the general court, or any other officers or persons whatever, that have reference to the last Wednesday of May as the commencement of the political year, shall be so far altered as to have like reference to the first Wednesday of January.

This article shall go into operation on the first day of October next following the day when the same shall be duly ratified and adopted as an amendment of the constitution; and the governor, lieutenant-governor, counsellors, senators, representatives, and all other state officers who are annually chosen, and who shall be chosen for the current year, when the same shall go into operation, shall hold their respective offices until the first Wednesday of January then next following, and until others are chosen and qualified in their stead, and no longer; and the first election of the governor, lieutenant-governor, senators, and representatives, to be had in virtue of this article, shall be had conformably thereunto, in the month of November following the day on which the same shall be in force and go into operation, pursuant to the foregoing provision.

[1 ]In lieu of this absolute negative, which, in the opinion of Mr. Adams, was an essential part of the plan, the convention adopted the following, as a separate article:—

II. No bill or resolve of the senate or house of representatives, shall become a law, and have force as such, until it shall have been laid before the governor for his revisal. And if he, upon such revision, approve thereof, he shall signify his approbation by signing the same. But if he have any objection to the passing of such bill or resolve, he shall return the same, together with his objections thereto, in writing, to the senate or house of representatives, in which soever the same shall have originated, who shall enter the objections sent down by the governor, at large on their records, and proceed to reconsider the said bill or resolve. But if, after such reconsideration, two thirds of the said senate or house of representatives shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and, if approved by two thirds of the members present, shall have the force of a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for or against the said bill or resolve, shall be entered upon the public records of the commonwealth.

And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law.

Extract from the Journal of the Convention.

“The paragraph from the report of the general committee,—namely, ‘That the first magistrate shall have a negative upon all laws, that he may have power to preserve the independence of the executive and judicial departments,’—on a motion made and seconded, was then put, and passed in the negative; thirty-two in seventy-six. (Ayes 32, nays 44.)”

At a subsequent period, the subject came up again, on the report of a committee to whom the article had been referred,—

“When it was moved and seconded, that the report be amended by introducing the following words; namely,—

“ ‘That the governor of this commonwealth have a negative upon all the laws, except those which shall be made and passed for the military defence of the State; and that he have a revision on those, to be conducted by the rules hereafter prescribed.’

“Which being largely debated, when the question was put, the same was determined in the negative; twenty in seventy-three.”

The decline in importance of the State governments, by the subsequent withdrawal of the power over the most material of the public interests into the national sphere, has rendered this question one of inferior interest in Massachusetts. But it is yet agitated in the federal system, and bids fair to continue unsolved for some time to come. Although cheerfully acquiescing in the alteration at the time, the abstract opinion of Mr. Adams, of the absolute necessity of this power to the maintenance of the executive independence, remained unchanged to the last.

In order that the period of five days conceded to the governor for consideration should not be cut off by the delay of the legislature to pass a measure until just before its adjournment, the convention of 1820 proposed, and the people ratified, the following amendment, which now stands as part of the constitution:—

Art. I. If any bill or resolve shall be objected to, and not approved by the governor, and if the general court shall adjourn within five days after the same shall have been laid before the governor for his approbation, and thereby prevent his returning it, with his objections, as provided by the constitution, such bill or resolve shall not become a law, nor have force as such.

[1 ]“or affirmations”

[2 ]“persons resident, and estates lying,”

[3 ]“and also to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities whatsoever, brought into, produced, manufactured, or being within the same;”

[1 ]“while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practised, in order that such.”

[2 ]“and as much oftener as the general court shall order.”

[3 ]The convention of 1820 further enlarged the powers of the general court by the following article, which was ratified, and now stands as the second article of amendment:—

“Art. 2. The general court shall have full power and authority to erect and constitute municipal or city governments in any corporate town or towns in this commonwealth, and to grant to the inhabitants thereof such powers, privileges, and immunities, not repugnant to the constitution, as the general court shall deem necessary or expedient for the regulation and government thereof, and to prescribe the manner of calling and holding public meetings of the inhabitants, in wards or otherwise, for the election of officers under the constitution, and the manner of returning the votes given at such meetings. Provided, that no such government shall be erected or constituted in any town not containing twelve thousand inhabitants; nor unless it be with the consent and on the application of a majority of the inhabitants of such town, present and voting thereon, pursuant to a vote at a meeting duly warned and holden for that purpose. And provided also, that all by-laws made by such municipal or city government, shall be subject, at all times, to be annulled by the general court.”

[4 ]By the latest or thirteenth article of amendment adopted under the new power in the legislature, granted in 1820, the basis of the senate has been changed as follows:—

“The several senatorial districts now existing shall be permanent. The senate shall consist of forty members; and, in the year one thousand eight hundred and forty, and every tenth year thereafter, the governor and council shall assign the number of senators to be chosen in each district, according to the number of inhabitants in the same. But, in all cases, at least one senator shall be assigned to each district.”

[1 ]“never be less than thirteen; and that no district be so large as to entitle the same to choose more than six senators.”

[3 ]“each town.”

[4 ]“inhabitant.”

[1 ]“having a freehold estate within the commonwealth, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to give in his vote for the senators for the district of which he is an inhabitant. And, to remove all doubts concerning the meaning of the word ‘inhabitant’ in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within this state, in that town, district, or plantation, where he dwelleth or hath his home.

“The selectmen of the several towns shall preside at such meetings impartially; and shall receive the votes of all the inhabitants of such towns present, and”

The qualification of voters was altered by the convention of 1820, in the manner pointed out in the note to the fourth article of the third section. See p. 243.

[1 ]“as pointed out in the constitution;”

[2 ]The mode of electing the senate was very much debated in the convention, and not decided upon without great difference of opinion. But it was acquiesced in, and has remained substantially unchanged to this day. Yet it may be justly objected to as defective in simplicity, and ill adapted to the equal representation as well of property as of public opinion in the commonwealth. The mode now generally pursued in the other states, of apportioning the members into separate districts, and doing away with the contingency of a vacancy, to be filled by a body other than the immediate constituents of the person elected, and often not in political sympathy with them, seems to recommend itself as more direct and consonant with the spirit of republican institutions.

[1 ]“such persons as shall be found to have the highest number of votes in such district, and not elected, amounting to twice the number of senators wanting, if there be so many voted for;”

[2 ]Extract from the Journal. “Moved and seconded, That the word ‘Protestant’ be inserted in lieu of the word ‘Christian,’ which, being put, passed in the negative.

“The question was then put upon the paragraph, so far as it takes up the qualification of religion. The same was rejected, and the words ‘of the Christian religion and’ voted to be expunged.”

[3 ]“or possessed of personal estate to the value of six hundred pounds at least, or of both to the amount of the same sum,”

[4 ]“five”

[5 ]“at the time of his election he shall be an inhabitant”

[1 ]The following article was added by the convention:—

“IX. Not less than sixteen members of the senate shall constitute a quorum for doing business.”

[2 ]“upon the principle of”

[1 ]The subject of representation seems to have exercised the skill of the convention more than any other portion of the instrument, and it has remained a difficulty from the beginning to this time. The problem has been to unite with the popular and just principle of the representation of townships, a ratio of tolerable equality, and a limitation of numbers sufficient for practical legislation.

Instead of the passage inclosed within brackets, the convention of 1780 adopted the following proviso:—

“Provided, neverthelesss, that each town now incorporated, not having one hundred and fifty ratable polls, may elect one representative; but no place shall hereafter be incorporated, with the privilege of electing a representative, unless there are within the same one hundred and fifty ratable polls.

“And the house of representatives shall have power, from time to time to impose fines upon such towns as shall neglect to choose and return members to the same, agreeably to this constitution.

“The expenses of travelling to the general assembly, and returning home, once in every session, and no more, shall be paid by the government out of the public treasury, to every member who shall attend, as seasonably as he can, in the judgment of the house, and does not depart without leave.”

The check here imposed upon an excess of members, consisted in the necessity laid upon the respective towns to pay their own representatives. This answered very well in all but high party times, when the evil was sure to be felt. But dissatisfaction with it existed on other grounds. It was found so much more easy and convenient to draw the means of payment from the common treasury of the state, that most persons of influence favored the inclination of the towns to shift the burden. Yet the desire to make this change was counteracted by the difficulty of finding a good substitute. The convention of 1820 attempted the experiment, and recommended an article to the people, but it was rejected. The legislatures of 1835 and 1836 proposed another, which received their assent, and now makes the twelfth article of amendments:—

“Art. 12. In order to provide for a representation of the citizens of this commonwealth, founded upon the principles of equality, a census of the ratable polls in each city, town, and district of the commonwealth, on the first day of May, shall be taken, and returned into the secretary’s office, in such manner as the legislature shall provide, within the month of May, in the year of our Lord, one thousand eight hundred and thirty-seven, and in every tenth year thereafter, in the month of May, in manner aforesaid; and each town or city, having three hundred ratable polls at the last preceding decennial census of polls, may elect one representative; and for every four hundred and fifty ratable polls, in addition to the first three hundred, one representative more.

“Any town having less than three hundred ratable polls shall be represented thus,—the whole number of ratable polls, at the last preceding decennial census of polls, shall be multiplied by ten, and the product divided by three hundred, and such town may elect one representative as many years within ten years as three hundred is contained in the product aforesaid.

“Any city or town having ratable polls enough to elect one or more representatives, with any number of polls beyond the necessary number, may be represented as to that surplus number, by multiplying such surplus number by ten, and dividing the product by four hundred and fifty; and such city or town may elect one additional representative as many years within ten years as four hundred and fifty is contained in the product aforesaid.

“Any two or more of the several towns and districts may, by consent of a majority of the legal voters, present at a legal meeting in each of said towns and districts, respectively, called for that purpose, and held previous to the first day of July, in the year in which the decennial census of polls shall be taken, form themselves into a representative district, to continue until the next decennial census of polls, for the election of a representative or representatives; and such district shall have all the rights, in regard to representation, which would belong to a town containing the same number of ratable polls.

“The governor and council shall ascertain and determine, within the months of July and August, in the year of our Lord, one thousand eight hundred and thirty-seven, according to the foregoing principles, the number of representatives which each city, town, and representative district is entitled to elect, and the number of years within the period of ten years, then next ensuing, that each city, town, and representative district may elect an additional representative; and where any town has not a sufficient number of polls to elect a representative each year, then, how many years within the ten years such town may elect a representative; and the same shall be done once in ten years thereafter, by the governor and council, and the number of ratable polls in each decennial census of polls shall determine the number of representatives which each city, town, and representative district may elect, as aforesaid; and when the number of representatives, to be elected by each city, town, or representative district, is ascertained and determined, as aforesaid, the governor shall cause the same to be published forthwith for the information of the people, and that number shall remain fixed and unalterable for the period of ten years.

“All the provisions of the existing constitution, inconsistent with the provisions herein contained, are hereby wholly annulled.”

This amendment had not been in operation a year, before it was discovered to be open to serious objections. Whilst it did not effectively remedy the serious evil of excess in the representation, the apportionment of it among the fractions created an extraordinary practical inequality. A new effort was made to remedy this, in connection with a radical change of the basis upon which the whole system originally rested, from polls or taxation, to population or numbers. This resulted, in 1840, in the modification of the basis of the senate, which has already been noticed under the proper head, and in the following article, which now constitutes the rule of representation in the lower house:—

“Art. 13. A census of the inhabitants of each city and town, on the first day of May, shall be taken, and returned into the secretary’s office, on or before the last day of June of the year one thousand eight hundred and forty, and of every tenth year thereafter, which census shall determine the apportionment of senators and representatives for the term of ten years.

“The members of the house of representatives shall be apportioned in the following manner:—Every town or city, containing twelve hundred inhabitants, may elect one representative; and two thousand four hundred inhabitants shall be the mean increasing number which shall entitle it to an additional representative.

“Every town containing less than twelve hundred inhabitants, shall be entitled to elect a representative as many times within ten years, as the number one hundred and sixty is contained in the number of the inhabitants of said town. Such towns may also elect one representative for the year in which the valuation of estates within the commonwealth shall be settled.

“Any two or more of the several towns may, by consent of a majority of the legal voters, present at a legal meeting in each of said towns, respectively, called for that purpose, and held before the first day of August, in the year one thousand eight hundred and forty, and every tenth year thereafter, form themselves into a representative district, to continue for the term of ten years; and such district shall have all the rights, in regard to representation, which would belong to a town containing the same number of inhabitants.

“The number of inhabitants which shall entitle a town to elect one representative, and the mean increasing number, which shall entitle a town or city to elect more than one, and also the number by which the population of towns, not entitled to a representative every year, is to be divided, shall be increased respectively, by one tenth of the numbers above-mentioned, whenever the population of the commonwealth shall have increased to seven hundred and seventy thousand; and for every additional increase of seventy thousand inhabitants, the same addition of one tenth shall be made respectively to the said numbers above mentioned.

“In the year of each decennial census, the governor and council shall, before the first day of September, apportion the number of representatives which each city, town, and representative district is entitled to elect, and ascertain how many years within ten years, any town may elect a representative, which is not entitled to elect one every year; and the governor shall cause the same to be published forthwith.”

The practical effect of the last amendment is to give a great preponderance to the power of the large towns, whilst the right of representation of the small ones is liable to be cut off at moments when it might be most for their interest that they should enjoy it. These disadvantages are not balanced by the slight relative inequality in their favor of the ratio of representation. This is one of the instances that can be quoted in modern times, (the Reform Bill in Great Britain is another,) in which an apparent concession to the popular principle has shown a practical movement in an opposite direction. The change of the basis, from property to population, has really promoted the influence of property. It may reasonably be doubted, whether any change yet made from the article as it originally stood in the constitution has been an improvement, although some change was made indispensable by the progress of the population.

[1 ]“Every member”

[1 ]“or any ratable estate to the value of two hundred pounds;”

[2 ]“qualified as aforesaid.”

By the last or thirteenth amendment of the constitution, adopted in 1840, it is provided: “That no possession of a freehold, or of any other estate, shall be required as a qualification for holding a seat in either branch of the general court, or in the executive council.”

[3 ]“any”

[4 ]The convention of 1820 proposed the following substitute for this article, which was adopted by the people, and now stands as the third article of amendments:—

“Art. 3. Every male citizen of twenty-one years of age, and upwards, (excepting paupers and persons under guardianship,) who shall have resided within the commonwealth one year, and within the town or district in which he may claim a right to vote, six calendar months next preceding any election of governor, lieutenant-governor, senators, or representatives, and who shall have paid, by himself or his parent, master, or guardian, any state or county tax, which shall, within two years next preceding such election, have been assessed upon him in any town or district of this commonwealth, and also every citizen who shall be by law exempted from taxation, and who shall be in all other respects qualified as above-mentioned, shall have a right to vote in such election of governor, lieutenant-governor, senators, and representatives; and no other person shall be entitled to vote in such election.”

[1 ]“be the judge of the returns, elections, and qualifications of its own members, as pointed out in the constitution; shall”

[2 ]“not a member”

[1 ]“or who, in the town where the general court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for any thing said or done in the house; or who shall assault any of them therefor; or who shall assault or arrest any witness or other person ordered to attend the house, in his way in going or returning; or who shall rescue any person arrested by the order of the house.

“And no member of the house of representatives shall be arrested, or held to bail on mean process, during his going unto, returning from, or his attending, the general assembly.”

[2 ]Addition:—

“And the senate and house of representatives may try and determine all cases where their rights and privileges are concerned, and which, by the constitution, they have authority to try and determine, by committees of their own members, or in such other way as they may respectively think best.”

[3 ]“declare himself to”

This declaration was annulled by the convention of 1820, in the seventh amendment which appears in the note to the fourth article. See page 263.

[1 ]“and the sheriff shall transmit the same to the secretary’s office, seventeen days at least before the said last Wednesday in May; or the selectmen may”

[2 ]“and the secretary”

[3 ]“all the votes returned,”

[4 ]Here follows in this draught a form of oath for the governor. But this, with several other articles, was transposed by the convention, as appears by the subjoined extract from the journal, February 25, 1780:—“It was then moved and seconded, that there be a distinct chapter in the constitution for the several oaths and tests which have been, or shall be, prescribed to be taken and subscribed by the officers of government, and the two houses of assembly, and also for the list of persons excluded from a seat in either house, and such miscellaneous matters as the convention shall direct to stand in the same.” See under the head of Chapter VI., p. 260.

[1 ]“agreeably to the constitution and the laws of the land.”

[2 ]The several clauses of this article are transposed in the constitution as adopted; but, as the language is not changed, it is not deemed important to note the variations.

The following clauses were added:—

“And in case of any infectious distemper prevailing in the place where the said court is next, at any time, to convene, or any other cause happening, whereby danger may arise to the health or lives of the members from their attendance, he may direct the session to be held at some other, the most convenient, place within the state.

“And the governor shall dissolve the said general court, on the day next preceding the last Wednesday in May.”

[3 ]“necessity, expediency, or”

[4 ]“not exceeding ninety days.”

[5 ]“expel”

[1 ]“if necessary,”

[2 ]“or invasion, and also in time of rebellion declared by the legislature to exist,”

[3 ]“these and”

[4 ]“and not otherwise.”

[5 ]“except so far as may be necessary to march or transport them by land or water, for the defence of such part of the state to which they cannot otherwise conveniently have access”

[1 ]The convention, in adopting the following substitute, made what, in the opinion of Mr. Adams, was the second material alteration of the executive power:—

“X. The captains and subalterns of the militia shall be elected by the written votes of the train-band and alarm list of their respective companies, of twenty-one years of age and upwards. The field-officers of regiments shall be elected by the written votes of the captains and subalterns of their respective regiments. The brigadiers shall be elected, in like manner, by the field-officers of their respective brigades. And such officers, so elected, shall be commissioned by the governor, who shall determine their rank.

“The legislature shall, by standing laws, direct the time and manner of convening the electors, and of collecting votes, and of certifying to the governor the officers elected.

“The major-generals shall be appointed by the senate and house of representatives, each having a negative upon the other; and be commissioned by the governor.

“And if the electors of brigadiers, field-officers, captains, or subalterns shall neglect or refuse to make such elections, after being duly notified, according to the laws for the time being, then the governor, with advice of council, shall appoint suitable persons to fill such offices.

“And no officer duly commissioned to command in the militia, shall be removed from his office, but by the address of both houses to the governor, or by fair trial in court-martial, pursuant to the laws of the commonwealth for the time being.

“The commanding officers of regiments shall appoint their adjutants and quarter-masters; the brigadiers their brigade-majors; and the major-generals their aids; and the governor shall appoint the adjutant-general.

“The governor, with advice of council, shall appoint all officers of the continental army, whom, by the confederation of the United States, it is provided that this commonwealth shall appoint; as, also, all officers of forts and garrisons.

“The divisions of the militia into brigades, regiments, and companies, made in pursuance of the militia laws now in force, shall be considered as the proper divisions of the militia of this commonwealth, until the same shall be altered in pursuance of some future law.”

The convention of 1820 once more revised this section by adopting the following article, which was ratified by the people:—

“Article 5. In the elections of captains and subalterns of the militia, all the members of their respective companies, as well those under as those above the age of twenty-one years, shall have a right to vote.”

And, with regard to removals, at the close of the fourth article of amendments:—

“All officers commissioned to command in the militia, may be removed from office in such manner as the legislature may, by law, prescribe.”

[1 ]“No”

[2 ]“(except such sums as may be appropriated for the redemption of bills of credit or treasurer’s notes, or for the payment of interest arising thereon) but”

[1 ]This provision, establishing a principle of rotation in office, was stricken out by the convention. The practice under the constitution shows that, without any express limitation, but a single case has occurred exceeding seven years, as the longest period that any individual remains governor.

The transfer to the general government of the most important attributes of executive power, has materially lessened the consequence of this post as an object of ambition. But in analyzing the theory upon which this plan is based, it is obvious that this section was incorporated for the purpose of counterbalancing the effect of the gift in other sections of such extensive powers as might make the chief magistrate’s place the object of great contention. The convention preferred to take away the powers, on the one hand, and withdraw the limitation, on the other.

[2 ]“supreme judicial”

[1 ]“And the day and manner of his election, and the qualifications of the electors shall be the same as are required in the election of a governor.”

[2 ]“all the votes returned”

[3 ]“shall have”

[4 ]“the votes of the people”

[5 ]Substitute:—

“The governor, and, in his absence, the lieutenant-governor, shall be president of the council, but shall have no vote in council. And the lieutenant-governor shall always be a member of the council, except when the chair of the governor shall be vacant.”

[6 ]“perform all the duties incumbent upon the governor, and shall”

[1 ]“be annually chosen from among”

[2 ]“And in case there shall not be found, upon the first choice, the whole number of nine persons who will accept a seat in the council, the deficiency shall be made up by the electors aforesaid, from among the people at large; and the number of senators left shall constitute the senate for the year.”

[3 ]“from the senate.”

[4 ]The last or thirteenth amendment of the constitution, adopted in 1840, contains the following modification of the provisions respecting the council:—

“Nine counsellors shall be annually chosen from among the people at large, on the first Wednesday of January, or as soon thereafter as may be, by the joint ballot of the senators and representatives, assembled in one room, who shall, as soon as may be, in like manner, fill up any vacancies that may happen in the council, by death, resignation, or otherwise. No person shall be elected a counsellor who has not been an inhabitant of this commonwealth for the term of five years, immediately preceding his election; and not more than one counsellor shall be chosen from any one senatorial district in the commonwealth.”

[5 ]“district”

[1 ]The convention of 1820 framed an article somewhat changing these modes of appointment, which was approved by the people, and is now the fourth of the amendments:—

“Art. 4. Notaries-public shall be appointed by the governor, in the same manner as judicial officers are appointed, and shall hold their offices during seven years, unless sooner removed by the governor, with the consent of the council, upon the address of both houses of the legislature.

“In case the office of secretary or treasurer of the commonwealth shall become vacant from any cause, during the recess of the general court, the governor, with the advice and consent of the council, shall nominate and appoint, under such regulations as may be prescribed by law, a competent and suitable person to such vacant office, who shall hold the same until a successor shall be appointed by the general court.

“Whenever the exigencies of the commonwealth shall require the appointment of a commissary-general, he shall be nominated, appointed, and commissioned in such manner as the legislature may, by law, prescribe.”

[1 ]“may appoint his deputies, for whose conduct he shall be accountable; and he”

[2 ]“shall by law have”

[3 ]“excepting such concerning whom there is different provision made in this constitution;”

[4 ]“Each branch of the legislature”

[5 ]“justices of the supreme judicial court”

[1 ]“same may, if necessary, be renewed, or another person appointed,”

[2 ]This power was early transferred by statute to the supreme judicial court of the state.

[3 ]“sometime in the month of June,”

[4 ]“to serve in congress for one year, to commence on the first Monday in November, then next ensuing.”

[5 ]This article was annulled by the adoption of the federal constitution. Six other articles contained in this chapter were transposed to the sixth chapter, by vote of the convention.

[1 ]“late.”

[2 ]In Quincy’s History of Harvard University, the following account of the origin of these three articles is given:—

“In September, 1779, the convention assembled to frame a constitution for the State of Massachusetts, being in session, a committee was raised in relation to the college, and was instructed ‘to prepare an article to be inserted in the new constitution, for confirming its privileges, and for such other purposes as they shall think proper, after consulting with the corporation of the college.’ James Bowdoin, President of the Convention, communicated these proceedings to the corporation; and a committee of the board was raised to take the subject into consideration. On the seventh of the ensuing October, this committee made a report, recapitulating all the leading facts of the constitutional history of the college, and submitting two proposals to be laid before the convention, containing articles to be inserted into the constitution of the commonwealth, on the interests of the college. These proposals, being accepted by the corporation and approved by the overseers, were subsequently adopted by the state convention, and now constitute distinct articles in the constitution of Massachusetts. . . . . The new organization of the state government also rendered it necessary to insert a third article in the same section of the constitution, declarative of the branches of the government which should succeed to the office of overseers, in place of those which were abrogated.”

It should be remarked, that from the journal of the convention, it is clear there was no special committee raised in relation to the college. This unimportant error grows out of the confounding of the convention with the grand committee of thirty, of which Mr. Bowdoin, the president, was chairman. It was by this committee that a vote was adopted, instructing the sub-committee of three, which was to have the general draught in its charge, to prepare the article, in conjunction with the corporation, as above described. The first and second articles were drawn up by a committee of the latter body, and entitled “Proposals to be laid before the Committee of the Convention.” They were, with only one or two verbal alterations, incorporated into the general report. The third article seems to have emanated from the sub-committee of the convention.

[1 ]This feature of the constitution of Massachusetts is peculiar, and in one sense original with Mr. Adams. The recognition of the obligation of a state to promote a higher and more extended policy than is embraced in the protection of the temporal interests and political rights of the individual, however understood among enlightened minds, had not at that time been formally made a part of the organic law. Those clauses, since inserted in other state constitutions, which, with more or less of fulness, acknowledge the same principle, are all manifestly taken from this source. The following history of the origin of it is taken from an account given by the author in 1809:—

“In travelling from Boston to Philadelphia, in 1774, 5, 6, and 7, I had several times amused myself, at Norwalk in Connecticut, with the very curious collection of birds and insects of American production made by Mr. Arnold; a collection which he afterwards sold to Governor Tryon, who sold it to Sir Ashton Lever, in whose apartments in London I afterwards viewed it again. This collection was so singular a thing that it made a deep impression upon me, and I could not but consider it a reproach to my country, that so little was known, even to herself, of her natural history.

“When I was in Europe, in the years 1778 and 1779, in the commission to the King of France, with Dr. Franklin and Mr. Arthur Lee, I had opportunities to see the king’s collections and many others, which increased my wishes that nature might be examined and studied in my own country, as it was in others.

“In France, among the academicians, and other men of science and letters, I was frequently entertained with inquiries concerning the Philosophical Society of Philadelphia, and with eulogiums on the wisdom of that institution, and encomiums on some publications in their transactions. These conversations suggested to me the idea of such an establishment at Boston, where I knew there was as much love of science, and as many gentlemen who were capable of pursuing it, as in any other city of its size.

“In 1779, I returned to Boston in the French frigate La Sensible, with the Chevalier de la Luzerne and M. Marbois. The corporation of Harvard College gave a public dinner in honor of the French ambassador and his suite, and did me the honor of an invitation to dine with them. At table, in the Philosophy Chamber, I chanced to sit next to Dr. Cooper. I entertained him during the whole of the time we were together, with an account of Arnold’s collections, the collections I had seen in Europe, the compliments I had heard in France upon the Philosophical Society at Philadelphia, and concluded with proposing that the future legislature of Massachusetts should institute an academy of arts and sciences.

“The doctor at first hesitated, thought it would be difficult to find members who would attend to it; but his principal objection was, that it would injure Harvard College, by setting up a rival to it that might draw the attention and affections of the public in some degree from it. To this I answered,—first, that there were certainly men of learning enough that might compose a society sufficiently numerous; and secondly, that instead of being a rival to the university, it would be an honor and advantage to it. That the president and principal professors would no doubt be always members of it; and the meetings might be ordered, wholly or in part, at the college and in that room. The doctor at length appeared better satisfied; and I entreated him to propagate the idea and the plan, as far and as soon as his discretion would justify. The doctor accordingly did diffuse the project so judiciously and effectually, that the first legislature under the new constitution adopted and established it by law.

“Afterwards, when attending the convention for forming the constitution, I mentioned the subject to several of the members, and when I was appointed by the sub-committee to make a draught of a project of a constitution, to be laid before the convention, my mind and heart were so full of this subject, that I inserted the chapter fifth, section second.

“I was somewhat apprehensive that criticism and objections would be made to the section, and particularly that the ‘natural history,’ and the ‘good humor,’ would be stricken out; but the whole was received very kindly, and passed the convention unanimously, without amendment.”

It is a singularity, perhaps worthy of note in connection with these injunctions, that the individuals who have since been elevated by the popular voice to the chief offices of the state, with a single exception, have not been noted among their fellow-citizens for any superior acquisitions of learning or intellectual culture. A considerable number have not gone through the higher grades of education in Massachusetts at all.

[1 ]The articles contained in this chapter, as it stands in the constitution, were scattered among the preceding ones, and from them transposed to here.

[2 ]“Any.”

[3 ]“lieutenant-governor, counsellor, senator, or representative,”

[1 ]“place or”

[2 ]“and have”

[3 ]“the constitution,”

[4 ]“the office or place to which I am elected.”

[5 ]Previous to this second oath, the following is here inserted as a substitute for the greater part of the other forms:—

“And the governor, lieutenant-governor, and counsellors shall make and subscribe the said declaration, in the presence of the two houses of assembly; and the senators and representatives first elected under this constitution, before the president and five of the council of the former constitution, and forever afterwards, before the governor and council for the time being.

“And every person chosen to either of the places or offices aforesaid, as also any person appointed or commissioned to any judicial, executive,military, or other office under the government, shall, before he enters on the discharge of the business of his place or office, take and subscribe the following declaration and oaths or affirmations, namely,—

“ ‘I, A B, do truly and sincerely acknowledge, profess, testify, and declare, that the commonwealth of Massachusetts is, and of right ought to be, a free, sovereign, and independent state; and I do swear, that I will bear true faith and allegiance to the said commonwealth, and that I will defend the same against traitorous conspiracies and all hostile attempts whatsoever. And that I do renounce and abjure all allegiance, subjection, and obedience to the king, queen, or government of Great Britain, (as the case may be,) and every other foreign power, whatsoever. And that no foreign prince, person, prelate, state or potentate, hath, or ought to have, any jurisdiction, superiority, preeminence, authority, dispensing, or other power, in any matter, civil, ecclesiastical, or spiritual, within this commonwealth; except the authority and power which is or may be vested by their constituents in the congress of the United States. And I do further testify and declare, that no man or body of men hath, or can have, any right to absolve or discharge me from the obligation of this oath, declaration, or affirmation; and that I do make this acknowledgment, profession, testimony, declaration, denial, renunciation, and abjuration, heartily and truly, according to the common meaning and acceptation of the foregoing words, without any equivocation, mental evasion, or secret reservation, whatsoever. So help me GOD.’ ”

[6 ]“and affirm,”

[1 ]“the laws of the commonwealth.”

[2 ]“Provided, always, that when any person, chosen or appointed as aforesaid, shall be of the denomination of the people called Quakers, and shall decline taking the said oaths, he shall make his affirmation in the foregoing form, and subscribe the same, omitting the words ‘I do swear,’ ‘and abjure,’ ‘oath or,’ ‘and abjuration,’ in the first oath; and in the second oath, the words ‘swear and;’ and in each of them the words ‘So help me God,’ subjoining instead thereof, ‘This I do under the pains and penalties of perjury.’

“And the said oaths or affirmations shall be taken and subscribed by the governor, lieutenant-governor, and counsellors, before the president of the senate, in the presence of the two houses of assembly; and by the senators and representatives first elected under this constitution, before the president and five of the council of the former constitution; and forever afterwards, before the governor and council for the time being; and by the residue of the officers aforesaid, before such persons, and in such manner as, from time to time, shall be prescribed by the legislature.”

The convention of 1820 recommended, and the people adopted, the following, which make the sixth and seventh articles of amendment:—

“Art. 6. Instead of the oath of allegiance prescribed by the constitution, the following oath shall be taken and subscribed by every person chosen or appointed to any office, civil or military, under the government of this commonwealth, before he shall enter on the duties of his office, to wit:—

“ ‘I, A B, do solemnly swear, that I will bear true faith and allegiance to the commonwealth of Massachusetts, and will support the constitution thereof. So help me God.’

“Provided, That when any person shall be of the denomination called Quakers, and shall decline taking said oath, he shall make his affirmation in the foregoing form, omitting the word ‘swear,’ and inserting, instead thereof, the word ‘affirm;’ and omitting the words ‘so help me God,’ and subjoining, instead thereof, the words, ‘This I do, under the pains and penalties of perjury.’

“Art. 7. No oath, declaration, or subscription, excepting the oath prescribed in the preceding article, and the oath of office, shall be required of the governor, lieutenant-governor, counsellors, senators, or representatives, to qualify them to perform the duties of their respective offices.”

[1 ]This article was much discussed in the convention, and gradually enlarged and extended, until it embraced the following restrictions:—

“II. No governor, lieutenant-governor, or judge of the supreme judicial court shall hold any other office or place, under the authority of this commonwealth, except such as by this constitution they are admitted to hold, saving that the judges of the said court may hold the offices of justices of the peace through the state; nor shall they hold any other place or office, or receive any pension or salary from any other state, or government, or power, whatever.

“No person shall be capable of holding or exercising, at the same time, within this state, more than one of the following offices, namely,—judge of probate, sheriff, register of probate, or register of deeds; and never more than any two offices which are to be held by appointment of the governor, or the governor and council, or the senate, or the house of representatives, or by the election of the people of the state at large, or of the people of any county, military offices and the offices of justice of the peace excepted, shall be held by one person.

“No person holding the office of judge of the supreme judicial court, secretary, attorney-general, solicitor-general, treasurer or receiver-general, judge of probate, commissary-general, president, professor or instructor of Harvard College, sheriff, clerk of the house of representatives, register of probate, register of deeds, clerk of the supreme judicial court, clerk of the inferior court of common pleas, or officer of the customs, including in this description naval officers, shall at the same time have a seat in the senate or house of representatives; but their being chosen or appointed to, and accepting the same, shall operate as a resignation of their seat in the senate or house of representatives; and the place so vacated shall be filled up.

“And the same rule shall take place in case any judge of the said supreme judicial court, or judge of probate, shall accept a seat in council; or any counsellor shall accept of either of those offices or places.

“And no person shall ever be admitted to hold a seat in the legislature, or any office of trust or importance under the government of this commonwealth, who shall, in the due course of law, have been convicted of bribery or corruption in obtaining an election or appointment.”

This was again modified by the convention of 1820, which prepared the following article of amendment, and the people approved it:—

Amendment.

“Art. 8. No judge of any court of this commonwealth, (except the court of sessions,) and no person holding any office under the authority of the United States, (postmasters excepted,) shall, at the same time, hold the office of governor, lieutenant-governor, or counsellor, or have a seat in the senate or house of representatives of this commonwealth; and no judge of any court in this commonwealth, (except the court of sessions,) nor the attorney-general, solicitor-general, county attorney, clerk of any court, sheriff, treasurer and receiver-general, register of probate, nor register of deeds, shall continue to hold his said office, after being elected a member of the Congress of the United States, and accepting that trust; but the acceptance of such trust, by any of the officers aforesaid, shall be deemed and taken to be a resignation of his said office; and judges of the courts of common pleas shall hold no other office under the government of this commonwealth, the office of justice of the peace and militia offices excepted.”

[1 ]“III. In all cases where sums of money are mentioned in this constitution, the value thereof shall be computed in silver, at six shillings and eight pence per ounce.”

[2 ]“as to property,”

This article, with the amendment, is joined to and makes a part of the third or preceding one in the constitution.

[1 ]“who is not a party,”

[2 ]“which have heretofore.”

[3 ]“of Massachusetts Bay,”

[4 ]“not exceeding twelve months.”

[1 ]This caption was stricken out by the convention, and the article was inserted as the ninth in the sixth chapter. The following wholly new articles were added as the tenth and eleventh:—

“X. In order the more effectually to adhere to the principles of the constitution, and to correct those violations which by any means shall be made herein, as well as to form such alterations as from experience shall be found necessary, the general court, which shall be in the year of our Lord, one thousand seven hundred and ninety-five, shall issue precepts to the selectmen of the several towns, and to the assessors of the unincorporated plantations, directing them to convene the qualified voters of their respective towns and plantations, for the purpose of collecting their sentiments on the necessity or expediency of revising the constitution, in order to amendments.

“And if it shall appear, by the returns made, that two thirds of the qualified voters throughout the state, who shall assemble and vote in consequence of the said precepts, are in favor of such revision or amendment, the general court shall issue precepts, or direct them to be issued from the secretary’s office to the several towns, to elect delegates to meet in convention, for the purpose aforesaid.

“The said delegates to be chosen in the same manner and proportion as their representatives in the second branch of the legislature are by this constitution to be chosen.

“XI. This form of government shall be enrolled on parchment, and deposited in the secretary’s office, and be a part of the laws of the land; and printed copies thereof shall be prefixed to the book containing the laws of this commonwealth, in all future editions of the said laws.”

One other article was adopted, at the recommendation of the convention of 1820, intended to open the way to further changes, without the necessity of resorting to a special assembly and a general revision. Thus far, in thirty years, under the operation of this rule, only three amendments have been adopted; but each of them has worked more fundamental alterations of the original instrument than were made by all the recommendations of the convention; and it is not unreasonable to infer, that an avenue has been opened by which many more will be hereafter introduced:—

“Art. 9. If at any time hereafter any specific and particular amendment or amendments to the constitution be proposed in the general court, and agreed to by a majority of the senators and two thirds of the members of the house of representatives present, and voting thereon, such proposed amendment or amendments shall be entered on the journals of the two houses, with the yeas and nays taken thereon, and referred to the general court then next to be chosen, and shall be published; and if in the general court next chosen, as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of the senators and two thirds of the members of the house of representatives present and voting thereon; then it shall be the duty of the general court to submit such proposed amendment or amendments to the people; and if they shall be approved and ratified by a majority of the qualified voters voting thereon, at meetings legally warned and holden for that purpose, they shall become part of the constitution of this commonwealth.”