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INTRODUCTION

The Massachusetts constitution of 1780, the last of the Revolutionary constitutions, was the first to embody the full-blown theory of constituent sovereignty. It had been framed in special convention and ratified by the people in town meetings. In this and in its provisions for an elective chief magistrate, a broadly representative legislature, and an independent judiciary, it avoided some of the paramount errors of the early constitutions. John Adams was its principal architect; and as the consummate expression of his political science, the constitution, together with its declaration of rights, represented a masterful adaptation of Massachusetts political custom and habit to Revolutionary theory, as well as an ingenious blending of “aristocratic” and “monarchical” elements into the republican fabric according to the canons of “balanced” government. In this character particularly, the constitution was the pride of the conservative men who led the Federalist Party and guided the affairs of the commonwealth through most of its history.

But the very features of the constitution they most admired were, of course, viewed as anachronisms by men who espoused a government uniformly free and republican. The latter had voiced their opposition to key provisions of the constitution in the course of its ratification. Although they were never entirely reconciled to the frame of government, it tended to vindicate itself in its working; and when the opportunity came for revision in 1795, as provided by the constitution, they let it pass. Perhaps they realized that in the political complexion of the state at that time no satisfactory reform was possible. The minority of dissenters identified their cause with the rising Republican Party. It was sometimes in power after 1800, but it lacked the strength to reform the constitution. Caught up in the heated dissension between the parties, the issue of reform could not be resolved. Only when political tempers cooled in “the era of good feelings,” shriveling the Federalist ranks and making Republicanism respectable, even in Massachusetts, was a constitutional convention decided upon.

The separation of the District of Maine and its admission to statehood furnished the suitable occasion. The change in Maine’s status called for revision of the system of representation, a subject entangled in other difficulties as well, and this problem, together with a mounting crisis in the religious life of the commonwealth, caused the legislature to place the question of a convention before the electorate in August 1820. The issue was little discussed publicly. Massachusetts then had a population of more than half a million, and the overwhelming majority of adult males could presumably qualify for the franchise. But, in practice, voting was the exception rather than the rule; on the convention issue, only 18,349 citizens cast their votes—a smaller return than usual in state elections. They favored the convention nearly 2 to 1. In October the towns elected delegates, 490 in all, in accordance with the scale of representation for the lower house of the legislature.

Massachusetts was at that time divided into fourteen counties. Suffolk (46 delegates), the wealthiest of the counties, was virtually coterminous with the burgeoning city of Boston. Essex (68 delegates) stood to the north, once a Federalist stronghold—the home ground of the notorious Essex Junto¹—and still dominated by the merchants and shipmasters of Salem, Newburyport, Marblehead, and Gloucester. Just west of Boston and bordering Essex to the north lay Middlesex (60 delegates), primarily a farming area though, as in Essex, several of its peaceful towns were absorbing the first shocks of the industrial revolution. South of Boston and circling Cape Cod to Provincetown lay the counties of Norfolk (34 delegates), Plymouth (35), Bristol (40), and Barnstable (17), an old settled area, equally varied in its economic and its religious character, much of it poor and cut off from the main stream of the state’s development. The off shore islands Nantucket (6 delegates), and Martha’s Vineyard, called Dukes (2), had never recovered from the blow struck by the Revolution to the fishing and whaling industries. The county lines of Worcester (70 delegates) bounded the large east-central portion of the state, agricultural, of course, and, on the whole, conservative in politics. In the rich Connecticut River valley lay the counties of Hampshire (25 delegates), Hampden (29), and Franklin (26), dominated by the towns of Northampton and Springfield. The valley had a reputation for orthodoxy in politics as in religion, despite Shays’s Rebellion; but it also prided itself on its independence, and the “river gods” had long been at odds with Boston, State Street, and Harvard College. The county of Berkshire (32 delegates) embraced the entire western hill country. Here, if anywhere, was the center of radical discontent in Massachusetts. Yet it is risky, as the proceedings of the convention prove, to pin a political label on any of the counties or the larger geographical divisions of the state. In all of them were friends of liberal reform. They had no common program and formed no solid bloc in the convention. It was, nevertheless, true that most of the reform leadership and following came from the outlying areas, while the conservatives centered in Boston and the Essex-Middlesex-Norfolk perimeter.

On November 15 the delegates crowded the representatives’ chamber of the State House in Boston, and the convention was called to order. The new generation paid its respects to the old by choosing the venerable John Adams president. He declined. (“Old time has shaken me by the hand, and paralyzed it,” he remarked in a letter to Thomas Jefferson.) Whereupon the convention chose Isaac Parker, chief justice of the Massachusetts supreme court, and on the following day ceremoniously conducted Adams to a permanent seat at the right hand of the president. The convention speedily organized itself. The constitution was divided into ten parts, each part assigned to a select committee to consider changes and report to the convention, these reports to be individually discussed and passed upon in committee of the whole, and the convention finally deciding upon the changes proposed. Some delegates questioned this procedure. Once the constitution had been dissected by ten separate committees, who could put it together again? “It is like sending mechanics into the woods in different directions to hew down trees and fit them for a building.”² They wished, rather, to attack the constitution as a unit. In so numerous a body such a plan might have been disastrous. The chosen line of procedure proved its efficiency; New York adopted it the next year. Expertly controlled by adept parliamentarians, most of them of conservative stripe, the convention was a model of deliberative conduct by a body of nearly five hundred men.

Counting all the men who wished fundamental changes in the constitution, the reform ranks undoubtedly numbered a majority of the convention. In James T. Austin, Henry Dearborn, Levi Lincoln, Henry Halsey Childs—Republicans to the man and sons of the first Jeffersonians in the Bay State—they had strong leaders. But the reformers were divided among themselves, disorganized, outmaneuvered, and outclassed by a small but powerful cadre of conservatives. Daniel Webster, just then coming into prominence as a statesman, and Supreme Court Justice Joseph Story were their brilliant champions, ably supported by such Federalist stalwarts as Leverett Saltonstall, Josiah Quincy, and Samuel Hoar. Revering the historic frame of government and united in their determination to save it from the assaults of “radicalism,” their strategy was a defensive one—their tactics conciliatory on minor points, obstinate on major principles. It succeeded magnificently. Story summarized the result with a measure of self-congratulation:

I firmly believe that those who ultimately prevailed in the Convention, were always in a minority in number, but with a vast preponderance of talent and virtue and principle. It was no small thing to prevent sad mischiefs to the Constitution. The struggle on our part was not for victory, but for the preservation of our best institutions.

What were these “best institutions” saved from destruction? First, the pecuniary qualification for the franchise; second, town representation in the house; third, the independence of the judiciary; fourth, the propertied basis of the senate; fifth, government support of religious worship. Four and five were the most seriously threatened. And the long-festering issue of state-supported religion gave more difficulty than any other.

The ruling order had not forgotten that Massachusetts began as a Holy Commonwealth. The faith of the Puritan founders had degenerated, of course, dissenting sects had sprung up and flourished, and Revolutionary ideas had upset the historic commitment to an established church; but in the face of these difficulties the state had endeavored to maintain its religious character and to enforce a corporate piety upon the entire community. Freedom of religious conscience was not denied in Massachusetts; indeed, it was expressly guaranteed by the second article of the declaration of rights. But it was rendered incomplete, and in the eyes of many dissenters nugatory, by other provisions of the constitution of 1780. Elected officials, senators, and representatives must declare their belief in the Christian religion. Ministers of Congregational churches in and around Cambridge held appointment as overseers of Harvard University, an institution sanctioned and supported by the state, yet dominated by this old, established clergy. Although the constitution did not formally establish the Congregational as the state church, it was the principal beneficiary of an ingenious compromise worked out by the framers to meet two sharply conflicting demands—religious freedom for the individual and public support of Christian worship for the peace and good order of the community. Embodied in the third article of the declaration of rights, the compromise required the several towns and parishes to make provision for public worship and instruction by Protestant ministers, provided, however, that “all monies paid by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination… .” What this amounted to was the establishment of Protestant Christianity, though not without preference as to sect, because it operated within the historic framework of the Congregational system. Parish and town boundaries were usually coterminous, thus enabling church and town to act as one. The statute enacted in 1786 to implement the third article by authorizing the parishes, as bodies corporate, to assess polls and property for the support of religion confirmed, in effect, the locally established Congregational religion. Dissenters, to be sure, could file certificates with the local authorities declaring that they worshipped outside the fold and requesting that their tax money be transferred to their own ministers. But not only was this an awkward business; it was also an avowal of religious inequality, an admission of the right of government to interfere in affairs of religion, and an affront to the private conscience.

The third article, hotly contested from the start, threw the state into religious turmoil at intervals for forty years. The Baptists spearheaded the opposition, but increasingly other dissenting sects, which multiplied and grew until they represented a formidable challenge to the standing Congregational order, lent their support. They called for a dissolution of the state’s connections with religion and the introduction of a “voluntary system” of religious life. Every other state of the Union came to this solution before 1820. The crusading Baptist preacher Elder John Leland, who returned to his native state after laboring many years in Virginia, championed the Jeffersonian way for Massachusetts. Religion in Virginia and most other states was entirely free of official sanction or support, Leland said, “yet they are not sunk with earthquakes or destroyed with fire and brimstone.” Christian faith, as well as republican principle, demanded the Jeffersonian solution: “According to our best judgments, we cannot pay legal taxes for religious services, descending even to the grade of a chaplain for the legislature. It is disrobing Christianity of her virgin beauty—turning the churches of Christ into creatures of state—and metamorphosing gospel ambassadors to state pensioners.”

Not surprisingly, the religious issue became involved in party politics. In opposing the Federalists, the Republicans appealed to the dissenting sects and necessarily opposed the clerical establishment, which was violently anti-Jeffersonian. The government passed briefly into Republican hands in 1807, and under Governor James Sullivan they endeavored to enact a reform bill. It failed. But the Massachusetts system was rapidly being undermined by dissenter resistance, variant practices in the towns, litigation and court decisions, and, finally, by divisions within the Congregational church itself. In 1811 the legislature passed the Religious Freedom Act, which exempted unincorporated religious societies from the payment of the parish taxes, thereby placing the dissenters on an equality with the Congregationalists in respect to supporting their own ministers. The law ended the annual scramble of the sects, often succeeded by long drawn-out lawsuits, for their shares of parish tax money. Staunch defenders of the third article assailed the law, saying it opened the door to evasion, and they foresaw a flight from the parishes in order to escape payment of religious taxes.

By 1820 the inherent contradictions in the Massachusetts experiment were tearing it apart. To these difficulties were now added those produced by a deep cleavage in the orthodox church. Unitarianism had grown up within that church. Adherents of this milder, rationalistic faith wished ministers of their own persuasion, and so intradenominational disputes between Unitarians and Trinitarians rocked the church already besieged by the host of dissenters. As their following increased in the eastern towns, though still a minority of the faithful in most instances, they seized upon the parish system and by polling majorities in town meetings took over scores of churches, forcing the orthodox to form new societies on a voluntary basis. Thus victimized by the unified town and parish system, many Congregationalists turned against it and lost interest in state-supported religion. The dissenters won some wholly unexpected allies. Culminating two decades of bitter controversy, the courts upheld the Unitarian claims in the case of the Dedham church in December 1820, just as the third article came before the convention in Boston.

The select committee on the declaration of rights recommended several concessions to American opinion and practice, while at the same time preserving the fundamental principle of the third article. Its coverage was extended to Catholics and unincorporated religious societies. The provision empowering the legislature to enjoin attendance at religious worship was stricken. This far the convention agreed to go. In acting on other parts of the constitution, the delegates eliminated the religious test for officeholders and opened the board of overseers of Harvard to ministers of all denominations. However, the convention balked at the recommendation to give constitutional status to the act of 1811 relieving sworn communicants of dissenting sects from the payment of parish taxes. The reformers, of course, wished to go all the way to the voluntary system; a few, very few, would have liked to strike the third article in entirety. They were repeatedly beaten down. The crucial vote came on January 6, 1820, on the substitute resolution, earlier defeated in committee of the whole, sponsored by Henry H. Childs of Pittsfield. After acknowledging the dependence of civil government upon the piety and morality fostered by the public worship of God, the resolution declared that this end is best achieved by leaving every man free to worship as he pleases and therefore that every society of Christians should be equal in the eyes of the law and empowered to support itself. The resolution fell on a record vote of 136 to 246. Only two counties, Bristol and Berkshire, where denominational democracy and religious liberalism were most advanced, gave majorities for the Childs’s substitute (see Table 1.2). The conservatives then beat back an eleventh hour move to graft the 1811 statute on the constitution. Perhaps the most important change in the third article grew out of the Unitarian controversy. This permitted a Congregationalist of one persuasion to have his tax money appropriated to a minister or society of the same persuasion within the denominational fold; in short, a Trinitarian need not support a Unitarian minister. Although Hoar and others, Unitarians for the most part, viewed this clause as a death blow to the establishment, simple justice required it as long as the fiction of one orthodox church persisted in Massachusetts.

Next to religion the most troublesome problem for the delegates was that of representation in the legislature. suffrage, although considered, was a minor issue. Few men otherwise qualified were excluded from the franchise by the constitutional requirement of a freehold worth £60 or productive of an annual income of £3, roughly translated as $200, or $10 (in American currency of 1820). Even this limitation was loosely enforced. Actual practice, if not the law, approximated universal male suffrage. Reformers were more concerned with the expediency than the justice of the requirement. A resolution to abolish it passed by a substantial margin, only then to be reversed when conservatives like Josiah Quincy held up the specter of a propertyless rabble multiplying in the new factory-towns and assailing the liberties and estates of the commonwealth. The convention quickly settled on an amendment extending the suffrage to men qualified by age and residence who also paid any tax to the state or county. This tax-paying qualification merely brought the constitution abreast of prevailing practice.

In accordance with the theory of balanced government and wishing to secure property against the masses, the framers of the Revolutionary constitution had based representation in the house on numbers, in the senate on property, or, to be strictly accurate, on the proportion of taxes paid by the senatorial districts. The select committee on this subject recommended no change. The delegates, in committee of the whole, signified their agreement. Then Henry Dearborn, in a long, impassioned speech—barely summarized in the Journal of Debates—attacked this “aristocratical principle” of property representation in the senate and offered a resolution to base that body on population by districts. Amazingly, the delegates adopted it without debate. When it was pointed out that the resolution was inconsistent with the rest of the report on the legislature branch, the delegates voted to reconsider. For the first time in the convention, the conservatives brought out their big guns against this “subversion of fundamental principle.” John Adams rose in defense of the property basis of the senate, recalling the doctrines of his elaborate Defense of the American Constitutions in 1787. The long speeches of Webster and Story made deep impressions and may, indeed, by sheer power of argument, have reversed the convention’s decision on this question. As Story pointed out, the actual difference between property and numbers was not great, and it was likely to diminish because of the rapid growth of population in the eastern cities, particularly Boston, which paid the largest share of taxes and were, therefore, favored in senatorial representation. Nevertheless, whether viewed in the light of principle or of power, the system was undemocratic. Western delegates could readily demonstrate that while it assigned six senators to Suffolk, it gave the three valley counties, twice as populous, only four. Suffolk and Essex together held one-third of the representation in the senate. The interest of a majority of the delegates clearly supported a senate based upon population, but the majority withered under the conservative counterfire. When the Dearborn resolution came to a vote in the committee of the whole on December 15, it was rejected 164 to 247. It met the same fate later in the convention.

The question of the senate was inseparable from the question of representation in the house. A meaningful balance required that the two chambers of the legislature be based upon different principles that had some logical relationship. If under the revised constitution representatives were to be paid out of the state treasury for the first time—and most delegates agreed they should be—this was further reason for basing the senate on taxes. Moreover, men had generally assumed, quite correctly, that the composition of the house in Massachusetts gave a preponderant representation to the small towns at the expense of the large; and since the report of the legislative committee looked to a continuation of this system, though on a reduced scale, it seemed unjust to expect the large towns to give up their superior position in the senate. The organization of the legislative branch in the constitution of 1780 embodied a compromise as well as a balance, and not only between property and numbers but also between the large eastern towns and the hundreds of hinterland villages. What the former had gained in the senate had to a considerable extent been off set by the latter’s gain in the house. Everyone in the convention recognized the reciprocity. Dearborn confessed, after the initial acceptance of his resolution on the senate, that he had no idea of making it popular and at the same time leaving representation in the house on a town basis. The other part of his plan, only now introduced, was to apportion representatives according to population in new electoral districts of about 13,000 inhabitants. The plan was thoroughly democratic; even Story conceded its justice. Moreover, it had the merit of skirting the critical problem of a vastly overpopulated house of representatives—five hundred members under the existing system of town representation. This was one of the problems that had brought the convention into being. It had to be solved.

Three solutions were offered. Dearborn’s, of course, simply abandoned the historic representation of the towns, deeply embedded along with the parish and the town meeting in Massachusetts tradition. And this was enough to sink the plan regardless of other considerations. The Worcester leader Levi Lincoln proposed a kind of federal system in reverse—corporate town representation in the house, the whole amounting to 334 members, and a popular senate. By mixing separate principles in the composition of the bicameral legislature, the plan allegedly met the old Whig criterion of balanced government. But the house remained too numerous and the representation grossly unequal. According to the analysis of William Prescott, 169 small towns, less than one-third the entire population, would choose a majority of the house. “Thus the liberties of the majority would be put in subjection to the minority in violation of the principle of every free government.” Obviously something was amiss when a Boston Federalist could appeal to majority rule and equal rights against a Jeffersonian outlander! Lincoln’s plan was buried in the committee of the whole, and he did not later attempt to resurrect it. The convention, by a substantial majority, gave its support to the plan of the legislative committee. Corporate towns of 1,200 inhabitants were to elect one representative, those of 3,600, two, and so on. Over one-half the towns of the state were thus deprived of annual representation; they were permitted, however, to send a delegate every other year or to join with neighboring towns similarly situated to meet the minimum population required. The new system would result in a house not exceeding 275 members. A majority of the delegates of only two counties, Plymouth and Bristol, voted against the revised plan (see Table 1.2).

Of the other issues in the convention, the one touching the independence of the judiciary stirred the most controversy. Story was a fanatic on this point; and as chairman of the judiciary committee, he reported an amendment requiring a two-thirds vote of both chambers, instead of the simple majority of the 1780 constitution, before the executive could remove a judge. The measure failed to pass. But Story gained some small additional protection for judges and single-handedly defeated a motion, reported to the convention from the great committee, empowering the legislature to reduce the salaries of judges. (Unfortunately, his speech on this question, together with the debate, which he described as the most brilliant of the convention, have not been preserved.) As in other states, the common provision of the early constitutions for an executive council to advise or act in concert with the governor gave trouble in Massachusetts. Here, however, since the governor was elective and the council had little authority, the question raised no fundamental issue of executive power and responsibility. The problem was that nine of the councillors (the tenth being the lieutenant governor) were elected from the senate on the joint ballot of the two chambers. This upset the senate; often the senators elected to this fifth wheel of the government declined to serve; and a council adhering to a party opposed to the governor caused disharmony in the executive branch. Reformers wished either to abolish the council or to make it elective of the people. It was retained, however, with a reduced complement of councillors to be elected by both chambers from the people at large. Before finishing its work, the convention wisely added a provision for popular amendment of the constitution, thereby postponing to a far distant day any repetition of their ordeal.

The convention adjourned sine die on January 9, 1821. Since its task was to revise the old constitution, not to frame a new one, the mode of presenting the amendments to the people for ratification was a difficult question. Webster saw the problem clearly, and midway in their proceedings the delegates adopted his resolution for grouping the amendments in distinct articles, so arranged “that, upon the adoption or rejection of any one or more of them, the other parts of the constitution may remain complete, and consistent with each other.” Applying this method, the convention proposed fourteen articles of amendment, which were explained in an “Address to the People.” In accordance with the act calling it into being, the convention directed that these articles be presented for ratification in town meetings by men qualified to vote for representatives in the legislature.

On April 9 the towns voted, the selectmen of each forwarding the returns to an examining committee appointed by the convention. The people approved nine of the articles, including the extension of the franchise, abolition of the test oath, the amendment article, and a stiff ban on plural officeholding. They disapproved of those articles, 1, 2, 5, 9, and 10, that the convention had labored hardest and longest to perfect (see Document 10). Article 1 embodied the revision of the third article; 2 altered the political year and provided for one, instead of two, annual sessions of the legislature; 5 was the article on representation, both house and senate, including the changes in the executive council; 9 contained new safeguards for the judiciary; and 10 confirmed the charter and the historic rights and privileges of Harvard University, except to open its board to clergy of any denomination. This article, in fact, was rejected by the largest majority of all—only Suffolk County favored it—suggesting that the democratic prejudice against Harvard, or perhaps against private corporations generally, ran wide and deep. The representation article also lost by a large majority. An analysis of the vote gives no clue to the reason. Essex returned the largest margin against it; two of the valley counties narrowly approved it.

With respect to the article on religion, however, it seems clear that the nearly 2 to 1 rejection was founded not on opposition to the minor changes proposed but on opposition to its retention in any substantial form. The article encountered strongest opposition in Bristol and Berkshire, whose delegates in the convention had supported the reform minority. Those from Bristol voted 2 to 1 for the Childs substitute, while their constituents voted 17 to 1 against the amended article. The three eastern-most counties returned modest majorities in favor, while the counties from Worcester westward voted 2½ to 1 against it. In all probability the convention’s revision pleased neither side, or any side, in the religious disputes of the commonwealth.

The Massachusetts experiment in state-supported religion deteriorated rapidly during the next decade. A legal system of public worship could not be maintained in a community characterized by a multiplicity of sects and, partly for that reason, by a profound regard for religious liberty. Bowing to the inevitable in 1833, the legislature sent to the people an amendment of the third article, basically the same as Childs had proposed a dozen years before. It was ratified by a majority of 10 to 1. In time, too, the people reformed the political year, altered the system of representation in the house, and placed the senate on a popular base.

The amendment article thus proved to be the most important reform introduced into the Massachusetts constitution in 1821. Democracy expressed itself more effectively through the slower and more cautious amendment process than through the convention medium. At first glance the vote on ratification of the fourteen articles might suggest that the populace was even more conservative than the convention. On closer inspection, however, it is apparent that the people approved the articles that came up to the democratic standard and disapproved those that did not. In general, then, the popular vote expressed a democratic judgment on the work of the convention. Marshaled and controlled by a conservative elite, the convention was a highly successful rearguard action against the advance of democracy. The speeches of Webster and Story, in particular, gave intellectual form and content to the conservative resistance everywhere. Significantly, the North American Review, the Boston quarterly and citadel of New England letters, devoted an article to these speeches, which at once became famous and which remain even today the most memorable features of the convention. But the resistance could not endure. As democratic leadership matured and acquired effective political organization, the electorate gradually reformed the historic constitution that was so little disturbed by the convention of 1820–1821.