A BRIEF HISTORY OF THE CONSTITUTION AND GOVERNMENT OF MASSACHUSETTS FROTHFNGHAM Tufts College Library GIFT OF AUSTIN B. FLETCHER 7^ A BRIEF HISTORY OF THE CONSTITUTION AND GOVERNMENT OF MASSACHUSETTS WITH A CHAPTER ON LEGISLATIVE PROCEDURE BY LOUIS ADAMS FROTHINGHAM, LL.B. SPEAKER, MASSACHUSETTS HOUSE OF REPRESENTATIVES, 1904-I9OS LIEUTENANT-GOVERNOR OF MASSACHUSETTS, I908-19IO LECTURER AT HARVARD UNIVERSITY ON STATE AND CITY GOVERNMENT IN MASSACHUSETTS . CAMBRIDGE PUBLISHED BY HARVARD UNIVERSITY 1916 6 COPYRIGHT, 1 91 LOUIS A. FROTHINGHAM JK .F"7 PREFACE This small volume is the outgrowth of a series of lectures given at Harvard University. It is put forth primarily for the use of students there, but it may also prove of assistance to the members of the General Court, to those who are interested in constitutional and historical matters, and at the present time, when a constitutional convention is con- templated, to those who may serve as delegates. A book recently issued by the Commission on Economy and Efficiency entitled Functions, Organization, and Admin- istration of State Government, covers the duties of the State officers and the Boards and Commissions, so I have omitted any detailed description of the powers and functions of those officials and bodies. I wish to express my appreciation of the kindness of Professor Edward Channing who was good enough to read the chapters on the early history. To the efficient Clerk of the House of Representatives, Mr. James W. Kimball, who read the chapter on Legislative Procedure, I owe thanks for valuable suggestions. To Professor W. B. Munro, who advised pubHcation and revised the material, I owe the encouragement to begin as well as to complete the work. The author is conscious of many omissions and short- comings in this book, but has endeavored to include in it data that seemed of most importance to those interested in study or casual investigation of constitutional and legislative matters. His apology for pubHcation, if any be needed, is that the subject-matter here dealt with has not been hereto- fore set forth in any one volume. L. A. Frothingham. Boston, Massachusetts, September, 191 5. iii Digitized by the Internet Archive in 2015 https://archive.org/details/briefhistoryofcoOOfrot CONTENTS CHAPTER PAGE Preface iii I. Early Forms of Government 3 II. The Constitution of Massachusetts 25 III. The Constitutional Convention of 1820 40 IV. The Constitutional Convention of 1853 51 V. The General Court 60 VI. The Governor 73 VII. Legislative Procedure 90 Index 129 A BRIEF HISTORY OF THE CONSTITUTION AND GOVERNMENT OF MASSACHUSETTS A BRIEF HISTORY OF THE CONSTITUTION AND GOVERNMENT OF MASSACHUSETTS CHAPTER I EARLY FORMS OF GOVERNMENT The Plymouth Colony Though the Plymouth Colony lasted as a separate entity less than a century, the founding of the Pilgrim Colony at Plymouth really marks the beginning of Massachusetts history. This Pilgrim scheme of government and its development are of vital interest to the student of Massachusetts constitu- tional history. Historians say that the compact signed on board the Mayflower was not a constitution, as it did not create a government, yet that document is nevertheless of vast importance, and far more than a mere historical manu- script. It showed the desire for a government in which every one was to share, and within four months of landing, moreover, a captain was chosen, a treaty with the Indians was concluded, laws and orders were passed, and a governor was elected. The Beginnings of Government The colonists tried to obtain a charter but never suc- ceeded in doing so. They governed under authority of a patent granted in 1621 by the Council for New England.^ 1 This body was established in 1620 by a reorganization of the Pl)miouth Company. It was given rights of government over all the territories in- cluded in its charter. This charter may be found in Ebenezer Hazard's Historical Collections, i, p. 103. 3 4 MASSACHUSETTS GOVERNMENT In 1629 another patent was granted. All freemen, who were church members, met together as a General Court. Here legislation was enacted, and up to 1636 all trials were also held before this body. In that year, however, the laws were revised, the government established on a permanent basis, the powers of the Governor and Assistants were defined, and the Governor and two Assistants were given certain jurisdic- tion over trials. This office of Assistant to the Governor had been provided for in 162 1, and although at first there was only one Assistant (to succeed the Governor in case of death), the number was gradually increased to seven. The General Court As the settlements increased in number, it was no longer convenient or feasible for all the people to meet as a General Court so deputies were pro\'ided for, and in 1639 these deputies were chosen and assembled together from different towns. The towns paid their own delegates and this mode of payment, as we shall see, was customary in Massa- chusetts. It was not until some time after the adoption of a Constitution in Massachusetts that the burden was taken away from the individual towns and placed upon the state treasury. The General Court in Plymouth could enact laws but they had to be acted on by two Legislatures, and the freemen could repeal them at the next general election, and enact any other useful measures.^ What a curious provision this seems to us now! In colonial days we had such safeguards thrown about the enactment of a mere law as are now usually applied only to a constitutional amendment; yet the re- quirement that an amendment even to such an important ^ Baylies, Memoirs of Plymouth Colony, i, p. 297. EARLY FORMS OF GOVERNMENT 5 document as the Constitution should be passed by two successive Legislatures is vigorously attacked nowadays as being too lengthy a proceeding. At the same time, we find in the Plymouth government a species of referendum and initiative which these same critics might applaud. It is often said that there is nothing new under the sun. Here we find an additional confirmation of the truth of that saying. But one cannot find much that is analogous between such a sniall colony where every one could easily keep in touch with what was going on, and our present-day communities. The Courts of the Plymouth Colony Courts had gradually grown up in the colony with the common law of England as the basis of jurisprudence. As early as 1623 a jury of twelve was provided in cases of crimi- nal facts of trespass and debts. There were four courts — the General Court meeting three times a year, the Court of Assistants also meeting three times a year and trying civil, criminal and appeal cases, a Selectmen's Court for cases under forty shillings between inhabitants of the town, and an Admiralty Court consisting of the Governor and three or four Assistants together with such other substantial persons as the Governor might appoint; and in 1685 — the General Court having divided the colony into counties consisting of Plymouth, Bristol and Barnstable — two County Courts in each coimty were provided for, to be held by the Assistants. The End of the Plymouth Colony Thus did the system of government grow up and develop in the Pilgrim Colony. What its results might have been had it remained a separate entity, is a matter only of con- jecture. We might have today a church government and we 6 MASSACHUSETTS GOVERNMENT might have a government with the initiative and referendum apphed on a wide scale. Such suggestions, however, can be but surmises, because under the charter granted by William and Mary estabHshing the Province of Massa- chusetts Bay in New England, Plymouth became part of Massachusetts and from that date (1691) her history has been the history of Massachusetts. Unlike the Plymouth colonists, the men of Massachusetts Bay obtained a charter from the Crown. The original one granted by Charles I estabHshed the Governor and Com- pany of Massachusetts Bay, a corporate body composed of a Governor, Deputy-Governor and eighteen Assistants. The Colony Charter Two charters were granted Massachusetts. The first one was given by Charles I, in 1628, and is known as the Colony Charter.^ Under this charter, the first governor, deputy- governor and assistants were appointed by the Crown. Their successors were to be elected by the freemen of the corporation. The executive power was vested in the gover- nor and assistants and the legislative power in the whole body of the freemen. Considering the opinions on govern- ment held by Charles I and his coimsellors, it may seem surprising that such a Kberal charter was obtained. If this were due to extraordinary enHghtenment on their part, it would indeed be surprising. On investigation, however, we find that the charter was granted according to the custom of the times; and we discover many other precedents for such charters. In 1463, for example, a charter was granted by Edward VI to the Merchants Adventurers trading with Flanders. Even as far back as the days of Henry I, in fact, ^ This may be found in William Macdonald's Documentary Source Book of American History, pp. 22-26. EARLY FORMS OF GOVERNMENT 7 charters were given to merchant guilds. A notable charter was given to the East India Company by Elizabeth in 1599. Thus the charter of 1628 was not an unusual document. This charter and its successor granted under William and Mary were really constitutions. To quote Lord Bryce, a constitution is " a frame of government estabhshed by a superior authority creating a subordinate law-making body which can do everything except violate the terms and trans- cend the powers of the instrument to which it owes its existence." The supreme authority under all charters was the Crown or Parliament.