Massachusetts Constitutional Convention of 1853

The Massachusetts Constitutional Convention of 1853 met in order to consider changes to the Massachusetts Constitution. This was the third such convention in Massachusetts history; the first, in 1779–80, had drawn up the original document, while the second, in 1820-21, submitted the first nine articles of amendment to a popular vote where all were approved. Since 1853, Massachusetts has had one subsequent Constitutional Convention, in 1917–18.

Background

George S. Boutwell was inaugurated Governor in January 1851. This "marked the beginning of a determined drive for the elimination of the 'inequalities' in the system of representation."^[1] A joint committee on representation of the Massachusetts General Court recommended an amendment giving smaller towns an unfair advantage over the larger ones, and it failed to reach the required two-thirds majority in the House. However, the drive for reform persisted, and a Senate bill provided that the people be asked whether they wished for a constitutional convention. The bill passed, but on November 10, 1851 the idea of a convention was rejected by a vote of 65,846 against to 60,972 in favor.^[2]

Undeterred, the Legislature on May 7, 1852 passed “An Act relating to the calling a Convention of Delegates of the People, for the purpose of revising the Constitution". On November 8^[3] of that year, the following question was answered in the affirmative by the voters:

Is it expedient that delegates should be chosen to meet in convention for the purpose of revising or altering the Constitution of government of this Commonwealth?

Delegates to the Convention were elected on March 7, 1853, with each town entitled to the same number of delegates as it had representatives in the Massachusetts House of Representatives.

The Convention

The Constitutional Convention met at 12 noon^[4] on Wednesday, May 4, 1853, at the State House in Boston.^[5] There were around 420 delegates,^[6] though often substantially fewer were actually present for votes. For instance, on a vote taken in the session of July 28, regarding Proposition Number Five, only 165 members–less than half the full body–were present and voting.^[7]

There is no record of any oath having been used to swear in the members.^[8] Every delegate was male.

On the first day of the Convention, a President was elected. Of 394 votes cast, the winner, Nathaniel Prentice Banks, received 250. George N. Briggs got 137 votes, with four others winning one vote each.^[9]

Also on the Convention's opening day, one man from each county was selected in order to sit on a committee to establish how best to proceed. They reported back two days later with a recommendation of standing committees.^[10] These were as follows:^[11]

#	Name	Members
1	Standing Committee on so much of the Constitution as is contained in the Preamble and Declaration of Rights.	13
2	Standing Committee on so much of the Constitution as relates to the Frame of Government, Elections by the Legislature, &c.	13
3	Standing Committee on so much of the Constitution as relates to the Senate.	21
4	Standing Committee on so much of the Constitution as relates to the House of Representatives.	21
5	Standing Committee on so much of the Constitution as relates to the Governor, &c.	13
6	Standing Committee on so much of the Constitution as relates to the Militia, &c.	13
7	Standing Committee on so much of the Constitution as relates to the Lieutenant-Governor, &c.	13
8	Standing Committee on so much of the Constitution as relates to the Council, &c.	13
9	Standing Committee on so much of the Constitution as relates to the Secretary and Treasurer, and the Attorney-General, Solicitor-General, Sheriffs, Coroners, Registers of Probate, and Notaries Public, &c.	13
10	Standing Committee on so much of the Constitution as relates to the Judiciary, &c.	13
11	Standing Committee on so much of the Constitution as relates to the University at Cambridge, &c.	13
12	Standing Committee on so much of the Constitution as relates to the Encouragement of Literature.	13
13	Standing Committee on so much of the Constitution as relates to Oaths and Subscriptions, Incompatibility and Exclusion from Office, Pecuniary Qualifications, &c.	13
14	Standing Committee on so much of the Constitution as relates to the Qualification of Voters, &c.	13
15	Standing Committee on so much of the Constitution as relates to Amendments and Enrolment.	13

Additionally, during the course of its business, the Convention found it expedient to organize Committees on Vacancies; the Adoption of the Principle of Plurality in Elections; the Loan and Credit of the State; Banking Corporations; General Corporations; and on the Order of Business.^[12] Finally, although the Legislature had abandoned this device some years previous, the Convention met several times as a Committee of the Whole; this allowed it to circumvent some of the cumbersome rules of procedure normally used and to quickly gauge the support of a particular measure.^[13] As for petitions, they "could be presented to the Convention only on introduction by a delegate."^[14]

Fifteen ministers were in attendance; on the second day of the Convention, Rev. Warren Burton was elected chaplain from among these. Of 385 votes cast, he received 224, with Lyman Beecher garnering 129, James D. Farnsworth, 17, and the rest one or two votes apiece.^[15]

Other prominent attendees included Charles Sumner, Henry Wilson, Robert Rantoul, Jr.,^[6] and George N. Briggs.^[9]

The Convention came up with eight proposals, which are enumerated below. After 72 days of work, it adjourned sine die on Tuesday, August 2, 1853, at 1:54 am.^[16] Before doing so, the Committee on the Pay Roll reported an expense figure of $114,092 for the Convention.^[17]

Closing speech and proposals

At Convention's closing session, Mr. Boutwell of Berlin addressed a message to the people.^[18] He noted that

“

As your delegates, we have sought for the principles of freedom in the ancient institutions of the State; but we have thought it wise also to accept the teachings and experience of nearly a century of independent existence. It has then been our purpose to unite in one system of organic law, the principles of American republican institutions, and the experiences of other free States, all contemplated in the light derived from the history and usages of Massachusetts.

”

Up to that point, the Massachusetts Constitution had been amended 13 times, and some of those provisions had rendered parts of the document's original body inoperative. Boutwell asserted that “Constitutional laws should be plain, that they may be impartially interpreted and faithfully executed, ‘that every man may at all times find his security in them’".^[19]

Proposition Number One

Adopted by the Convention and to be submitted to the people for a vote was a new Constitution overhauling that of 1780. Boutwell enumerated its main points:

• The Constitution of 1780 was to be preserved as the basis of a new Constitution, with changes incorporated.
• The General Court would have a 100-day session, with members' pay fixed by standing laws.
• The method of electing Senators was changed. Previously, each county had elected between one and six senators; now, 40 districts of equal population were to be drawn, with one Senator for each district.
• In the House of Representatives, the system of per-town representation kept, wherein each town, no matter how small, had at least one Representative. Boutwell said, “We do not claim that this system, separately considered, is precisely equal; but if it is in some degree favorable to the rural districts, the loss sustained by the large towns and cities is in a fair measure compensated by the manifest advantages accorded to them in the constitution of the Council and the Senate.”^[20]
• Realizing there was opposition to this, provision was made for the 1856 Legislature to present a district system to the people based on the results of the 1855 state census.
• No district could elect over three Representatives. “The election of many officers on a single general ticket, is not compatible with the freedom and purity of the representative system.”^[21]
• The property requirement for Governor and Lieutenant Governor was abolished.
• The Massachusetts Governor's Council was now to be popularly elected in eight single-member districts and its records were to be made public.
• The Attorney General, Secretary of the Commonwealth, Auditor, and Treasurer, then appointed by the Governor or chosen by the Legislature, were to be elected annually. Judges and registers of probate, sheriffs, clerks of courts, commissioners of insolvency, and District Attorneys, all appointed by the executive or the courts at the time, were to be popularly elected for 3-year terms.
• Justices of the Massachusetts Supreme Judicial Court and the Court of Common Pleas were hereafter to be appointed to 10-year terms.
• The procedure for removing judges was streamlined.
• Justices of the peace with chiefly ministerial duties were to be appointed by the Governor and Council; those with judicial authority were to be elected for 3-year terms.
• The property qualification for voting was entirely abolished.
• The secret ballot was enshrined in the Constitution.
• Previously, if no candidate attained a majority of votes, a subsequent runoff election would be held. Now, candidates having the highest number of votes would be deemed elected, even without a majority, in county and district elections.
• However, if candidates for Governor, Lieutenant Governor, Secretary of the Commonwealth, Attorney General, Treasurer, or Auditor failed to receive a majority, the election would be referred to the General Court. For General Court representatives and town officers, runoff elections were to be held if no majority were obtained on the first ballot. Provision was made that if the public demanded plurality voting, the Legislature may introduce it.
• Provisions regarding the State Militia were revised.
• Changes were proposed concerning the University at Cambridge (Harvard), then a public institution: the General Court was instructed to provide means for the enlargement of the School Fund to no less than $2 million.
• Provision was made for periodical Constitutional Conventions (every 20 years) not subject to or restricted by previous or subsequent acts of the Legislature.

Additionally, and this was not mentioned by Boutwell, the Constitution provided that the Tuesday after the first Monday in November was to be the State election day, so as to align with the Congressional election day.^[22]

Boutwell closed by calling the adoption or revision of a constitution “an epoch in the history of a free people,” stating that “We have no doubt that your decision will…under Divine Providence,…render more and more illustrious our ancient Commonwealth.”^[23]

In addition to the new constitution, seven distinct amendments were proposed, numbered two through eight, as the constitution was number one. They were as follows:^[24]

Proposition Number Two

The writ of habeas corpus shall be granted as of right in all cases in which a discretion is not especially conferred upon the court by the Legislature; but the Legislature may prescribe forms of proceeding preliminary to the obtaining of the writ.

Proposition Number Three

In all trials for criminal offences, the jury, after having received the instruction of the court, shall have the right, in their verdict of guilty or not guilty, to determine the law and the facts of the case, but it shall be the duty of the court to superintend the course of the trials, to decide upon the admission and rejection of evidence, and upon all questions of law raised during the trials, and upon all collateral and incidental proceedings; and also to allow bills of exceptions. And the court may grant a new trial in case of conviction.

Proposition Number Four

Every person having a claim against the Commonwealth, ought to have a judicial remedy therefor.

Proposition Number Five

No person shall be imprisoned for any debt hereafter contracted, unless in cases of fraud.

Proposition Number Six

All moneys raised by taxation in the towns and cities, for the support of public schools, and all moneys which may be appropriated by the State for the support of common schools, shall be supplied to and expended in no other schools than those which are conducted according to law, under the order and superintendence of the authorities of the town or city in which the money is to be expended; and such moneys shall never be appropriated to any religious sect, for the maintenance, exclusively, of its own schools.

Proposition Number Seven

The Legislature shall not create corporations by special act, when the object of the incorporation is attainable by general laws.

Proposition Number Eight

The Legislature shall have no power to pass any act granting any special charter for banking purposes, or any special act to increase the capital stock of any chartered bank; but corporations may be formed for such purposes, or the capital stock of chartered banks may be increased, under general laws.

The Legislature shall provide by law for the registry of all notes or bills authorized by general laws to be issued or put in circulation as money; and shall require ample security for the redemption of such notes in specie.

Results

On November 11, 1853, the proposals of the Constitutional Convention were placed before the voters. Every single one, including the new Constitution, went down in defeat. The results for individual questions are shown below.^[25]

#1 (New Constitution)

Voted Yes	Percent Yes	Voted No	Percent No
63,222	48.1	68,150	51.9

#2 (Habeas corpus broadened)

Voted Yes	Percent Yes	Voted No	Percent No
63,382	48.6	67,006	51.4

#3 (Right of Jury nullification)

Voted Yes	Percent Yes	Voted No	Percent No
61,699	47.4	68,382	52.6

#4 (Judicial investigations against the Commonwealth permitted)

Voted Yes	Percent Yes	Voted No	Percent No
63,805	48.9	66,828	51.1

#5 (Restraints upon imprisonment of debtors increased)

Voted Yes	Percent Yes	Voted No	Percent No
64,015	49.1	66,432	50.9

#6 (State funding of religious schools prohibited)

Voted Yes	Percent Yes	Voted No	Percent No
65,111	49.85	65,512	50.15

#7 (Businesses incorporated under general, not special, laws)

Voted Yes	Percent Yes	Voted No	Percent No
63,246	48.6	67,011	51.4

#8 (Banks incorporated under general, not special, laws; banknotes redeemed in specie)

Voted Yes	Percent Yes	Voted No	Percent No
63,412	48.6	67,109	51.4

The counties of Barnstable, Dukes, Essex, Hampshire, Middlesex, Nantucket, Norfolk, Plymouth, and Suffolk rejected every proposal. On the other hand, the counties of Berkshire, Franklin, Hampden, and Worcester voted in favor of each proposal, with support strongest in Worcester County, which approved each question by a margin of around 13,000 to 7,500. Bristol County was nearly evenly split on the questions, with proposals 1, 2, 4, 5, 7, and 8 carrying by margins of 31, 15, 74, 7, 54, and 35, respectively, while proposals 3 and 6 lost by 115 and 32 votes, respectively.

Analysis of the defeat

Had the Convention submitted its proposed changes as individual amendments, "undoubtedly it would have proved a success,"^[22] as evidenced by the adoption of most of its proposals as amendments in the coming years. The trouble was that it "did not know where to begin and where to end."^[26] On the one hand, it left the House of Representatives elected by the same method as before, and representation, since 1780 a contentious issue, "had been the real cause for the convocation of the convention."^[27] On the other hand, it took the radical step of reducing judges' terms from life to ten years for the SJC and Court of Common Pleas and three years for probate judges. This change "was too much; it brought down a veritable storm of excoriation upon the convention and its work, and resulted in the flat rejection of the whole."^[28]

Partial vindication

Although its ambitious proposals were all rejected, the Convention's work was not for nothing. A series of constitutional amendments passed over the next few years incorporated many of the same changes into the Constitution.

Amendments XIV through XIX have a clear "post-convention" character to them, having been adopted by the 1854 and 1855 Legislatures and approved by the people on May 23, 1855.

• Amendment XIV provided for plurality voting for all civil officers of the State. This ensured that the situation occurring in 1850, where the Legislature decided the gubernatorial election, would not be repeated.
• Amendment XV provided that state elections be held on the Tuesday after the first Monday in November, harmonizing with Federal elections.
• Amendment XVI enacted reform of the Governor's Council, now to be popularly elected in eight single-member districts.
• Amendment XVII provided for popular election of the Secretary of the Commonwealth, Treasurer, Auditor, and Attorney General.
• Amendment XVIII prohibited state funding of sectarian schools. Voted on as Proposition Number Six in 1853, this was the proposal of the Convention that came closest to passing that year, which is unsurprising given the strength of the Know Nothing movement in Massachusetts at the time.
• Amendment XIX provided for the popular election of sheriffs, registers of probate, clerks of the courts, and District Attorneys, but not judges.

Amendments XXI and XXII also bear the stamp of the Convention's influence; they were adopted by the 1856 and 1857 Legislatures and approved by the people on May 1, 1857.

• Amendment XXI finally fixed the size of the House of Representatives at 240 and abolished the per-town apportionment that had been so problematic. While this was not part of the Convention's package of proposals, it was the Convention that "gave the people a well-defined program of construction for matters which required change”;^[29] it was from this new spirit of reform harnessed by the Convention that Amendment XXI emerged.
• Amendment XXII reformed the Senate, transforming it from a house whose representation was based on wealth and land to one whose members were drawn from 40 districts of equal population and who did not have property qualifications.

Finally, Amendment XXXIV, adopted by the 1891 and 1892 Legislatures and approved by the people on November 8, 1892, abolished the property requirement for Governors and Lieutenant Governors.

References

1. ^ Glasser, Eli A., Government and the Constitution (1820–1917), p. 19, in Commonwealth History of Massachusetts: Colony, Province and State, vol. 4, Albert B. Hart (ed.), New York, The States History Company, 1930.
2. ^ ibid., p. 20.
3. ^ Journal of the Constitutional Convention of the Commonwealth of Massachusetts, Begun and Held in Boston, on the Fourth Day of May, 1853, p. 1. Boston, White & Potter, 1853.
4. ^ Bulletins for the Constitutional Convention, 1917-1918. Volume I: Bulletins 1 to 16, p. 11. Boston, Wright & Potter Printing Company, 1918.
5. ^ 1853 Journal, p. 8.
6. ^ ^{a b} Glasser, p. 20.
7. ^ 1853 Journal, p. 306.
8. ^ 1917 Bulletins, p. 13.
9. ^ ^{a b} 1853 Journal, p. 4.
10. ^ 1917 Bulletins, p. 16.
11. ^ 1853 Journal, pp. 27-30.
12. ^ 1917 Bulletins, p. 21.
13. ^ ibid., p. 25.
14. ^ ibid., p. 26.
15. ^ 1853 Journal, p. 11.
16. ^ ibid., p. 423.
17. ^ ibid., p. 422.
18. ^ ibid., pp. 415-421.
19. ^ ibid., p. 416.
20. ^ ibid., p. 417-8.
21. ^ ibid., p. 419.
22. ^ ^{a b} Glasser, p. 21.
23. ^ 1853 Journal, p. 421.
24. ^ ibid., p. 414-5.
25. ^ ibid., p. 541.
26. ^ ibid.
27. ^ ibid.
28. ^ ibid.
29. ^ ibid., p. 22.