Papers of John Adams, volume 8

To Henry Marchant

From Bidé de Chavagnes

The Massachusetts Constitution: ca. 28–31 October 1779 The Massachusetts Constitution: ca. 28–31 October 1779
The Massachusetts Constitution
ca. 28–31 October 1779
Editorial Note Editorial Note
Editorial Note

Of the eleven states that adopted constitutions during the Revolutionary period, Massachusetts, ratifying its document in 1780, was the last. 229(Connecticut and Rhode Island, both with corporate charters that granted broad autonomous powers, did not revise their organic law until the nineteenth century.) The General Court had drafted a constitution which it presented to the towns in 1778, but they overwhelmingly rejected it for a variety of reasons, ranging from its lack of a bill of rights to its being written and presented for approval in dangerous times when many voters were away on military service. A few towns asserted that a constitution ought to be drafted by a convention specially chosen for that sole purpose, on the grounds that constitutional law should be superior to mere acts of legislation. Nearly everyone was agreed, even in 1778, that any constitution must have the approval of the people. Responding to these objections, Massachusetts perfected the modern constitutional convention and ratification procedure that has since been used almost exclusively in framing organic law in the United States. In taking this final step, Massachusetts built on the constitutional traditions of Pennsylvania and Delaware, whose 1776 constitutions were drawn up by special conventions that were distinct from the established legislatures of those states, but whose work was not submitted to the voters for approval (J. Paul Selsam, The Pennsylvania Constitution of 1776, A Study in Revolutionary Democracy, Phila., 1936, p. 162–164, 211–212; John A. Monroe, Colonial Delaware, A History, N.Y., 1978, p. 253).

Massachusetts not only refined the American system of constitution-making, but produced the longest and most detailed constitution of the Revolutionary era. This document contributed several important principles that were adopted by other states as they revised their constitutions as well as by the framers of the United States Constitution. Most of these principles were espoused and articulated by John Adams, who played the key role in drafting a constitution that has lasted to the present day, although it has acquired more than one hundred amendments. The Massachusetts Constitution, with its provision for a strong, independent executive, instituted a true check-and-balance system. The other early state constitutions concentrated power in the hands of legislatures, which in most instances elected their chief executives. Pennsylvania provided for no governor at all, and New York's independently elected governor had to share his limited veto power with others and exercised more restricted appointive powers than were provided in Massachusetts. Nearly all of the states had sought to create an independent judiciary in their 1776–1777 constitutions by prescribing tenure during good behavior, but John Adams had already played a crucial role in establishing this principle through his Thoughts on Government (1776), which strongly influenced the drafting of several of those early constitutions (vol. 4:65–93).

The Massachusetts Constitutional Convention met in Cambridge on 1 September 1779. Each town had been authorized to choose as many delegates as it was entitled by law to send to the General Court, but the franchise was opened without regard to property holdings to “every 230Freeman, Inhabitant of [a] town, who is twenty one years of age” ( Journal of the Convention , p. 6). According to the official journal, over three hundred delegates were chosen. Comparison of the delegate list with the roster of representatives to the General Court reveals that towns generally sent far more men to the convention than they sent to the House, a sign perhaps that the task ahead was viewed as serious indeed. The main business during the week-long first session was to name a drafting committee made up of representatives from each county, totaling twenty-seven men, plus four members chosen at large. The actual number selected, however, was only thirty because the two island counties, Dukes and Nantucket, together entitled to one committeeman, sent no delegates to Cambridge. After organizing this committee, the convention adjourned to 28 October, when a full draft constitution was to be presented for consideration.

The drafting committee, meeting in Boston on 13 September, named a subcommittee, comprised of James Bowdoin, the convention's president, Samuel Adams, and John Adams, to do the preliminary work. The subcommittee turned the writing of a draft over to John Adams. According to an account he wrote in 1812, Adams' fellow subcommittee members took exception to only “one Line of no consequence” in his completed draft, and this he deleted. The full drafting committee, again according to Adams, substituted a qualified executive veto for the absolute veto that Adams favored and struck out the governor's power to appoint militia officers (JA to William D. Williamson, 25 Feb. 1812, MeHi). Adams' memory was faulty for both these changes were made by the full convention. The committee's printed Report of a Constitution (the document that follows) includes neither of these alterations.

The only contemporary clue we have to changes made by the full committee is furnished in two letters, both written by Adams while the convention was meeting in its second session. In answer to Elbridge Gerry's plea that an executive veto be limited to any attempt by the legislature to “affect the powers of the Executive” (to JA, 12 Oct., above), Adams replied, “I am clear for Three Branches, in the Legislature, and the Committee have reported as much, tho aukwardly expressed” (4 Nov., below). On the same day he wrote to Benjamin Rush: “If the Committee had boldly made the Legislature consist of three Branches, I should have been better pleased” (also below). What Adams meant was that the unqualified veto of the governor made him in effect a third branch, giving him the critical checking power that a “Reservoir of Wisdom” should have over the legislators, who comprised a reservoir of liberty (to Gerry, 4 Nov.). Despite the absolute veto that the Report of a Constitution gives to the governor, it specifically declares, in Chapter II, Section I, Article I, that “The department of legislation shall be formed by two branches.”

John Adams' remarks to Gerry and Rush are the only evidence known to the editors which suggests that his draft was significantly altered by 231the committee before it was printed and offered to the convention. He did disclaim authorship of Article III of the Declaration of Rights, which provided tax support for religion, and we know from other sources that Chapter VI, Section I, which protected the interests of Harvard College, was largely drafted by a committee appointed by that institution (JA to William D. Williamson; JA, Works , 4:258, note 2). But until contrary evidence appears, we can only assume that Adams' draft, with the exceptions noted, was largely that of the printed Report.

In stating that the committee's draft was virtually Adams' own, it should be understood that it was not all original. John Adams was pleased to have a role in designing a new constitution, which he had long urged his political colleagues in Massachusetts to do, but he recognized that it was “impossible for Us to acquire any Honour, as so many fine Examples have been so recently set Us” (JA to Benjamin Rush, 10 Sept., above). Adams borrowed liberally from these examples. Formal bills of rights had been written for the constitutions of five of the original states in 1776—Virginia, Pennsylvania, Delaware, Maryland, and North Carolina—and for Vermont in 1777, and several states without such formal bills included similar rights in their descriptions of governmental agents and their powers (Thorpe, ed., Federal and State Constitutions ; Max Farrand, “The Delaware Bill of Rights of 1776,” AHR , 3:641–649 [July 1898]). In drafting Massachusetts' Declaration of Rights, Adams was greatly influenced by the order of listing and some of the language found in Pennsylvania's declaration. Virginia, Maryland, and Delaware also offered several ideas. All of the states had before them the great state papers of English history—Magna Charta and its revision, the Great Charter of 1225, the Petition of Right (1628), the Bill of Rights (1689), and the Act of Settlement (1701). In drafting the Frame of Government, Adams drew upon the Massachusetts Charter of 1691, his own Thoughts on Government, and even the rejected Constitution of 1778 for some of his language.

If Adams borrowed, he also made significant contributions of his own. The true check-and-balance system, originally described by him in Thoughts on Government, with its independent executive and independent judiciary, has already been mentioned. Less often noticed by historians has been Adams' organization of the Frame of Government into chapters, sections, and articles, which makes the Massachusetts Constitution much easier to read and refer to than the simple consecutive listing of articles or sections that characterizes every other early state constitution. This major innovation was incorporated into the New Hampshire constitution (1784) and the United States Constitution. Adams also changed the basis of representation in the House from the number of voters to the number of ratable polls, which included, with some exceptions, all free males sixteen years of age and above. This change would allow counting for representation purposes those who were too young or who had too little property to vote, but who had to

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pay a tax or have their father or master pay it for them. Thereby apprentices and grown sons still living on the family farm would become part of the population that Adams thought the representative body should reflect.

Adams himself was pleased with the convention's acceptance without change of his second section under Chapter VI, “The Encouragement of Literature, &c.,” which spelled out in broad terms a positive role for government in promoting education, science, and the arts in both public and private institutions. One immediate object that he had in mind as he drafted this section was an academy of men interested in the arts and the natural sciences, and especially the natural history of America, that would be based in Massachusetts and would rival the American Philosophical Society in Philadelphia and emulate the great academies of England and France. He had suggested founding such an academy to Samuel Cooper in August 1779, shortly after his return to America, and the hint was soon taken up (JA to Benjamin Waterhouse, 7 Aug. 1805, MHi). In 1780 the Commonwealth of Massachusetts chartered the American Academy of Arts and Sciences.

Three less conspicuous innovations deserve mention. Taking language from the 1691 charter, Adams detailed the powers of the legislature far more specifically than was done in other early state constitutions. He also called for limits on the legislative power to suspend habeas corpus. Only Georgia among the other states had even mentioned this important right, and Georgia did not address the problem of suspension. The power of the General Court in this area became one of the most hotly debated issues in the convention; a twelve-month time limit for suspension was added to Adams' article, but some delegates were greatly disappointed that the convention did not further limit this suspensive power. Finally, Adams gave the governor and Council and the Senate power to request a judicial opinion upon important questions of law. The convention extended this power to the House as well, while confining the right to give such an opinion to the Supreme Judicial Court. This legislative power was not found in the other state constitutions.

The number and significance of the alterations that the convention made in Adams' draft are greater than usually realized and need passing mention if only to place his authorship in proper perspective. As noted above, Adams himself singled out as particularly important, if unfortunate, two revisions: the two-thirds legislative vote that could override a governor's veto, which New York had employed in 1777 and which was adopted in the United States Constitution; and the election of officers by members of the militia in preference to appointment by the governor. The convention also rejected Adams' proposed rotation in the office of governor, a feature common to nearly all of the 1776 constitutions. This clause would have prevented a man from serving more than five one-year terms out of seven. The explicit requirement that major 234officeholders be Christians was limited by the convention to the governor and his lieutenant, but the oath of office for councilors and legislators required swearing or affirming a belief in the truth of the Christian religion. In addition, the convention broadened Adams' proposed property qualifications for legislators to include personal property as well as freeholds of stated value. And in the Declaration of Rights the convention dropped the reference to the right of free speech which Adams had copied from the Pennsylvania declaration, although the delegates retained liberty of the press. They also provided for compensation when private property was taken for public purposes.

Some of the convention's additions corrected Adams' oversights. For example, he neglected to provide for the House the right to judge the qualifications of its members, and for the Senate, a quorum. He made no provision for amendments, although he was quite aware that any constitution would require them. One of the convention's more significant additions was the inclusion of a definition of town inhabitancy that was in line with traditional practices, which were designed to keep indigent and disorderly outsiders from claiming to be inhabitants of a town. And the convention was far more specific than Adams in guarding against plural officeholding, an abuse much complained about in the provincial period.

Finally, the convention rejected Adams' scheme of allowing towns with too few ratable polls for representation in the House to associate with larger towns in jointly choosing a representative, a device Adams had adapted from the Constitution of 1778. Small towns themselves felt that in associating, their influence would be lost; they wanted every town to have at least one representative, regardless of size. The convention, however, would yield no more than making provision for travel pay out of the public treasury to encourage small and poor towns already enjoying a right to representation to continue to send a member to the House.

The Massachusetts Constitution of 1780 occupies a central position both in America's constitutional tradition and in John Adams' thought. The long months of drafting, revision, and ratification greatly refined America's constitution-making procedure, and prepared the way for the United States Constitution. In its principles and its structure, Massachusetts' document was the culmination of that process of turning away from legislative-centered government to embrace a system of checks and balances, strong, popularly elected executives, and independent judiciaries. This tradition, advanced so effectively by Adams himself in Thoughts on Government, had gradually gained momentum, particularly with the adoption of New York's constitution of 1777. After 1780, Americans faced a clear choice between Pennsylvania's legislative-centered form of government and the tripartite Massachusetts model, a choice resolved in Massachusetts' favor with the ratification of the United States Constitution in 1787–1788.

For John Adams, too, Massachusetts' new constitution marked both a 235culmination and a turning point. As political thought and organic law, Adams' Report of a Constitution summarized nearly two decades of reading, thinking, and writing about balanced constitutions and just, durable governments. Its sources were varied, ranging from Greek, Roman, and British political thinkers whom Adams had long admired, especially James Harrington, to his own published writings and a wide range of American constitutions. These last-named included documents that Adams revered, like the Massachusetts Charter of 1691, and those he thought serviceable, like the Virginia and Maryland constitutions of 1776 and Massachusetts' own rejected Constitution of 1778, but also those of which he was highly critical, notably Pennsylvania's Constitution of 1776. John Adams left no doubt in his correspondence that he thought the American constitutional tradition was vigorous and healthy, and he believed that America's best constitutions were far superior to those in operation in Europe, as he would argue at great length in his Defence of the Constitutions of the United States (1787–1788).

At the same time, however, Adams was disappointed that the convention proved unreceptive to his absolute executive veto. Writing to Elbridge Gerry, he declared that without this power the executive, a sound government's “Reservoir of Wisdom,” would be run down by an aggressive legislature “like a Hare before the Hunters” (4 Nov., below). This disappointment seems to foreshadow the decline of John Adams' political optimism and of his receptivity to further constitutional innovation, as well as his growing concern that aristocracies in all forms threatened the vitality of balanced republican government. And his mounting anxiety over this concern would soon color his political thought so strongly that by the late 1780s he had moved out of the mainstream of America's still evolving constitutional tradition, a tradition to which he had contributed so much. What he left behind was America's most carefully balanced state constitution, the last great practical statement of the classical British commonwealth tradition and, not incidentally, the oldest functioning written constitution in the English-speaking world.

John Adams wrote the substance of the Report of a Constitution between 13 September and mid-October 1779, largely in Braintree, and presented it for revision to his subcommittee colleagues, and then to the full drafting committee, in mid- and late October. He presumably attended the full drafting committee sessions in October, and probably the full convention sessions of 28–30 October and 1–3 November as well. His attendance in the week after 4 November, when his correspondence resumes and he was preparing to sail again for Europe, seems less likely. No manuscript notes, rough drafts, or finished copies of Adams' text, or any detailed references to the committee sessions, are known to the editors.

The Report of a Constitution was distributed to the convention delegates in two parts. The first fifteen pages, through the end of the Declaration of Rights, were passed out to the members on order of the convention on Friday morning, 29 October. The entire pamphlet of fifty 236pages, upon which the text below is based, was distributed on Monday, 1 November. Only the Library of Congress is known to have a copy of the fifteen-page first section, lacking the portion of the Frame of Government which begins on the bottom half of page fifteen. Copies of the complete pamphlet survive in several libraries and archives, often with annotations made by the delegates who first received them. When Adams departed for Europe on 15 November, he took with him several copies of the Report, which he gave to various acquaintances and officials in France and Holland, and even to some in England. He arranged for the Report to be printed in London and Paris in the spring of 1780, and later that year he had the adopted constitution printed in England, France, and the Netherlands (JA to Edmé Jacques Genet, 26 Feb., below; Thomas Digges to JA, 14 April 1780, Adams Papers; JA, Diary and Autobiography , 2:413; Adams Family Correspondence , 3:228 , 349; 4:267). His preliminary version of the Massachusetts Constitution provoked much interest and admiration abroad.

The annotation below indicates specific sources that Adams drew upon, as well as all major alterations to the Report made by the convention. Most minor changes of phrasing are not noted. And since the focus is on John Adams, only occasional account is taken of the debates in the convention, of the proposals that failed, or of the sharpness of division in the votes on some provisions. For a fuller description of the convention's work, see Robert J. Taylor, “Construction of the Massachusetts Constitution,” Amer. Antiq. Soc., Procs., 90 (1980):317–346. The Massachusetts Charter of 1691 and the Revolutionary-era constitutions of all the states can be found in Thorpe, ed., Federal and State Constitutions ; volume three gives the Massachusetts texts. For the rejected Constitution of 1778, see Robert J. Taylor, ed., Massachusetts, Colony to Commonwealth, Chapel Hill, N.C., 1961, p. 51–58.

The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts, 28 – 31 October 1779 JA The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts, 28 – 31 October 1779 Adams, John
The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts
ca. 28–31 October 1779 1
The report of a constitution or form of government for the commonwealth of Massachusetts:

Agreed upon by the Committee—to be laid before the Convention of delegates, assembled at cambridge, on the First Day of September, A. D. 1779; and continued by Adjournment to the Twenty-eighth Day of October following.


TO the Honorable the Convention of Delegates from the several Towns in the State of Massachusetts, appointed for the forming a new Constitution of Government for the said State.


Your Committee, in Pursuance of your Instructions, have prepared the Draught of a new Constitution of Government for this State; and now make Report of it: which is respectfully laid before you, in the following Pages, for your Consideration and Correction.

In the Name of the Committee,

James Bowdoin, Chairman.
A Constitution or Form of Government for the Commonwealth of Massachusetts.

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 tranquility, 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.2

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,3 acknowledging, with grateful hearts, the goodness of the Great Legislator of the Universe, in affording to this people, 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 surprize;4 and of forming a new Constitution of Civil Government, for themselves and their posterity; and devoutly imploring His direction in a design so interesting to them and their posterity, DO, by virtue of the authority vested in us, by our constituents, agree upon5 the follow-238ing Declaration of Rights, and Frame of Government, as the CONSTITUTION of the COMMONWEALTH6 of Massachusetts.


A DECLARATION of the RIGHTS of the Inhabitants of the Commonwealth of Massachusetts.

Art. All men are born equally free and independent,8 and have I. 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 duty9 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 worshiping GOD in the manner10 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.11

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 expence 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.

All monies, paid by the subject to the support of public worship, and of the instructors in religion and morals, shall, if he requires it, be uniformly applied to the support of the teacher or teachers of his own religious denomination, if there be such, whose ministry he attends upon: otherwise it may be paid to the teacher or teachers of the parish or precinct where he usually resides.12

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 are not, or may not hereafter, be by them expresly 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.13

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 descendents, or relations by blood, the idea of a man born a magistrate, law-giver, or judge, is absurd and unnatural.14

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 incontestible, 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.15

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 in 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.16

IX. All elections ought to be free; and all the male inhabitants of this commonwealth, having sufficient qualifications, have an equal right to elect officers, and to be elected for public employments.17

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 expence of this protection; 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 controulable by any other laws, than those to which their constitutional representative body have given their consent.18

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; compleatly, and without any denial; promptly, and without delay; conformably to the laws.19


XII. No subject shall be held to answer for any crime or offence, untill the same is fully and plainly, substantially and formally, described to him: He cannot 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 council, at his election; to meet the witnesses against him face to face, to produce all proofs that may be favourable to him;20 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.

XIII. In criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securites of the life, liberty and property of the citizen.21

XIV. 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.22

XV.23 Every man24 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.

XVI. In all controversies concerning property, and in all suits between two or more persons,25 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.

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.26

XVIII. The people have a right to keep and to bear arms for the common defence. And as in time of peace standing27 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.


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 law-givers 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.28

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.29

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 expresly provide for:30 and there shall be no suspension of any law for the private interest, advantage, or emolument, of any one man or class of men.

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.

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.

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.

XXV. Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceeding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government.31

XXVI. No man ought in any case or in any time, to be declared guilty of treason or felony by any act of the legislature.32

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

XXVIII. IN time of peace, no soldier ought to be quartered in any 242house 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.

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.33

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 judges34 should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.

XXXI. The judicial department of the State ought to be separate from, and independent of, the legislative and executive powers.35

The Frame of Government.

The people inhabiting the territory heretofore 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.37


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.

They shall assemble once, on the last Wednesday in May, and at such other times as they shall judge necessary,39 every year; and shall be stiled, 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.40


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.41

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,42 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 oaths43 as shall be respectively administred unto them for the execution of their several offices and places, so as the same be not repugnant or contrary to this Constitution;44 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 residents within the said Commonwealth, and upon all estates within the same; 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 244 image and things whereby they may be religiously, peaceably, and civilly governed, protected, and defended.45

And that public46 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.47


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; 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.49

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, viz.

Suffolk 6
Essex 6
Middlesex 5
Hampshire 4
Plymouth 3
Barnstable 1
Bristol 3
York 2
Dukes County } 1
and Nantucket
Worcester 5
Cumberland 1
Lincoln 1
Berkshire 2

II. The Senate shall be the first branch of the legislature; and the Senators shall be chosen in the following manner, viz. There shall be a meeting on the first Monday in April annually, forever, of the inhabitants of all the towns50 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 245electing persons to be Senators and Counsellors: And at such meetings every male person51 of twenty-one years of age and upwards, resident in such towns one year next preceeding the annual election of Senators,52 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.53

The Selectmen of the several towns shall preside at such meetings,54 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 towns55 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 246Senators, 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;56 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 following manner, viz. The members of the House of Representatives, and such Senators as shall be declared elected,57 shall take the names of twice the number of Senators wanting, from those who shall be found to have the highest number of votes in such district, and not elected; 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, and58 seized in his own right of a freehold within this Commonwealth, of the value of three hundred pounds at least,59 and who has not been an inhabitant of this Commonwealth for the space of seven years, three of which60 immediately preceeding his election, and in the district for which he shall be chosen.

VII VI.61 The Senate shall have power to adjourn themselves, provided such adjournments do not exceed two days at a time.

VIII VII. The Senate shall choose its own President, appoint its own officers, and determine its own rules of proceedings.

IX VIII. The Senate shall be a court with full authority to hear 247and determine all impeachments made by the House of Representatives, against any officer or officers of the Commonwealth, for misconduct and mal-administration 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 further 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.62

SECTION III.63 House of Representatives.

I. There shall be in the legislature of this Commonwealth, a representation of the people, annually elected, and founded in64 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 rateable polls, may elect one Representative: Every corporate town, containing three hundred and seventy-five rateable polls, may elect two Representatives: Every corporate town, containing six hundred rateable polls, may elect three Representatives; and proceeding in that manner, making two hundred and twenty-five rateable polls the mean increasing number for every additional Representative.65

And forever hereafter the least number of rateable 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 rateable polls for every additional Representative any corporate town may elect.

And to prevent hereafter the House of Representatives from becoming unweildy, 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 rateable polls; nor to elect two Representatives unless it shall contain five hundred rateable polls; nor to elect three Representatives unless it shall contain eight hundred rateable polls; and so proceeding in that manner, making by the aforesaid rule three hundred rateable polls the mean increasing number for every additional Representative. And every tenth year, from and after the 248said 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 rateable 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 rateable 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 rateable 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.

III. The members66 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,67 and for one year at least next preceeding his election shall have been an inhabitant of, and have been seized 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;68 and he shall cease to represent the said town or towns, immediately on his ceasing to be a freeholder within the same.

IV. Every male person, being twenty-one years of age, and resident69 in any particular town in this Commonwealth for the space of one year next preceeding, having a freehold estate within the same town, of the annual income of three pounds, or other estate, real, or personal or mixt,70 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.71

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,72 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 Representatives73 shall chuse 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 person74 who shall be guilty of disrespect to the house, in its presence,75 by any disorderly, or contemptuous behaviour; or76 by threatning 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 to attend the House, in his way in going or returning, or in rescuing any person arrested by order of the House.

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.77

Executive Power. SECTION I. Governor.

Art. I. There shall be a supreme executive Magistrate, who shall be stiled, THE GOVERNOR OF THE COMMONWEALTH OF MASSACHUSETTS; and whose Title shall be—HIS EXCELLENCY.79


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 preceeding; and unless he shall at the same time be seized in his own right of a Freehold within the Commonwealth, of the value of One Thousand Pounds; and unless he shall 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;80 or shall 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, who 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 votes81 through the Commonwealth, 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. The person chosen Governor, and accepting the trust, shall, in the presence of the two Houses, and before he proceed to execute the duties of his office, make and subscribe the following declaration, and take the following oaths, to be administred by the President of the Senate: viz.—

I, A. B. being declared duly elected Governor of the Commonwealth of Massachusetts, do now declare, that I believe and profess the christian religion, from a firm persuasion of its truth; and that I am seized and possessed in my own right of the property required by law, as one qualification for that office.


I, A. B. do solemnly swear, 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 that I will not attempt or consent to a violation thereof. So help me GOD.82

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.83

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 preceeding 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.84

VII. In cases of disagreement between the two Houses, with regard to the85 time of adjournment or prorogation, the Governor, with advice of the Council, shall have a right to adjourn or prorogue the General Court,86 as he shall determine the public good shall require.

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 chief87 commander, or other officer or officers, to be appointed by him88 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,89 repel, resist, 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,90 and conquer, by all fitting ways, enterprizes, and means whatsoever, all and every such person and persons as shall, at any time hereafter, in a hostile manner attempt, or enterprize the destruction, invasion, detriment, or annoyance of this Commonwealth; and to use and exercise, over the 252army and navy, and over the militia in actual service, the law-martial in time of war, invasion, or rebellion,91 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;92 and to take and surprize, 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,93 that the Governor be intrusted with all94 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.95

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;96 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.

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.97

X. All judicial officers, the Attorney-General, the Solicitor-General, all Sheriffs, Coroners, Registers of Probate, and Registers of Maritime Courts,98 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.99

XII. All monies shall be issued out of the treasury of this Commonwealth, and disposed of100 by warrant under the hand of the Gov-253ernor 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.

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 harbour or harbours, 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, dispatches, 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.101

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 Superior Court.102

And if it shall be found, that any of the salaries aforesaid, so estab-254lished, are insufficient, they shall, from time to time, be enlarged as the General Court shall judge proper.


Lieutenant-Governor,104 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 HONOR105—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.106 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,107 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 has a majority of the votes of the people 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.108

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,109 have and exercise all the powers and authorities, which by this Constitution the Governor is vested with, when personally present.

IV. 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 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.

V. And it shall be in the power of the legislature from time to time, to increase such qualifications of the persons to be elected to offices, as the circumstances of the Commonwealth shall require.110


Council, and the Manner of setling Elections by the Legislature; Oaths to be taken, &c.112

I. There shall be a Council for advising the Governor in the execu-255tive 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 of the persons returned for Counsellors and Senators,113 be annually chosen, on the last Wednesday in May, by the joint ballot of the Senators and Representatives assembled in one room.114 The seats of the persons, thus elected into the Council, and accepting the trust shall be vacated in the Senate; and in this manner the number of Senators shall be reduced to thirty one.

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 county115 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 compleated on that day, the said elections may be adjourned from day to day until the same shall be compleated. 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. 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 dec-256laration, 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) viz.—

I, A. B. being appointed 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) viz.—

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 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.116


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 monies 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.

II. The records of the Commonwealth shall be kept in the office of the Secretary,118 who shall attend the Governor and Council, the Senate and House of Representatives, in person, or by his Deputies, as they shall respectively require.

Judiciary Power.

Art. I. The tenure, that all commission officers by law hold in their offices, shall be expressed in their respective com-257missions. All judicial officers, duely appointed, commissioned and sworn, shall hold their offices during good behavior:120 Provided nevertheless, the Governor, with consent of the Council, may remove them upon the address of both Houses of the legislature:121 and all other officers, appointed by the Governor and Council, shall hold their offices during pleasure.122

II. No Justice of the Superior Court of Judicature, Court of Assize, and General Goal Delivery, shall have a seat in the Senate, or House of Representatives.123

III. The Senate, nevertheless, as well as the Governor and Council, shall have authority to require the opinions of the Judges upon important questions of law, and upon solemn occasions.124

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, as shall most conduce to the well-being of the Commonwealth.

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.

VI. All causes of marriage, divorce and alimony, shall be determined by the Senate;125 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.

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,127 shall, on the second Wednesday of November, if the General Court be then sitting, or on the second Wednesday of the Session next after,128 be elected annually, by the joint ballot of the Senate, and House of Representatives, assembled together in one room.129 They shall have commissions 258under 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.

II. 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.130

III. 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,131 to which they shall be returnable, and be signed by the clerk of such court.

IV. All indictments, presentments, and informations, shall conclude, “against the peace of the Commonwealth and the dignity of the same.”132

V. 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 have been adopted, used and approved in the said Province, Colony, or State,133 and usually practiced 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.

VI. 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.134

VII. The enacting Style, in making and passing all acts, statutes and laws, shall be—“Be it enacted by his Excellency the Governor,135 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.

The University at Cambridge, and Encouragement of Literature, &c. SECTION I. The University.137

Art. I. Whereas our wise and pious ancestors, so early as the year one thousand six hundred and thirty six, laid the 259foundation 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, for ever.

II. And whereas there have been at sundry times, by divers persons, gifts, grants, devises of houses, lands, tenements, goods, chattles, 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, divisor or devisors.

III. 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 noth-260ing 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 Province of the Massachusetts-Bay.

SECTION II.138 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 humour, and all social affections, and generous sentiments among the people.

CHAPTER VII. and last.139
Continuance of Officers, &c.

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, 261and the supreme and executive officers, under this Constitution, are designated, and invested with their respective trusts, powers and authority.


PAGE 5. 10th and 11th Line of the Preamble, read, Prosperity and Happiness.

In Lieu of the last Paragraph in the 6th Page, substitute the following.

“WE, therefore, the people of Massachusetts, acknowledging with grateful hearts, the goodness of the Great Legislator of the Universe, in affording us, 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 surprize; and of forming a new Constitution of Civil Government for ourselves and posterity; and devoutly imploring His direction in so interesting a design, DO agree upon, ordain and establish, the following Declaration of Rights, and Frame of Government, as the CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS.

PAG. 7, Chap. I, Art. I.l.1. Read “All men are born free and equal,” omitting the words “equally141 and independent.”

Art. 2. l. 1. Read, “It is the Right as well as the Duty.” 1. 6. Read, “in the manner and season most agreeable.”

PAG. 15. Chap. II. Next under the 1st Section, insert the Contents of it, viz.—The Legislature, or General Court.

PAG. 23. For Art. VII. read VI. for VIII. r. VII. and for IX. r. VIII.

PAG. 39. l. 8 from bot. for “County,” read “District.”

MS not found. Reprinted from (The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts, Boston, Benjamin Edes & Sons, 1779 Evans, No. 16352).


The typesetting of the Report may have begun as early as 28 Oct., but was completed on the 30th or 31st. The copies were distributed to the convention on Monday, 1 Nov. See note 140.


The convention put “happiness” third in this trio of goals.


In the completed and ratified Constitution, all references to delegates assembled in convention for the purpose of drafting a constitution as instructed were eliminated, and all third-person references to Massachusetts' citizens, such as “to this people” and “to them and their posterity,” were changed to first-person forms.


The preceding eight words were transposed to follow “opportunity.”


The convention inserted “ordain and establish” after “agree upon.”


The rejected Constitution of 1778 had referred to the “State of Massachusetts Bay.” Virginia called itself a “Commonwealth” in its 1776 constitution, and JA promptly endorsed the term. He urged it upon Jonathan Dickinson Sergeant for New Jersey in July 1776 and told Francis Dana in August of that year that he hoped Massachusetts would adopt it (vol. 2624:397, 466). “Commonwealth” had also been favored over “state,” although not exclusively, in Pennsylvania's constitution of 1776, and was used interchangeably with “state” in the constitutions of Maryland (1776) and Vermont (1777). It would later be employed in Kentucky.

A “commonwealth” indicated a society in which ultimate political power was vested in the people, a meaning not automatically implied in the word “state.” For JA the term declared a connection between Revolutionary America and England's seventeenth-century Commonwealthmen, especially James Harrington. An unnamed delegate to the Massachusetts convention sought to honor Harrington even more directly when, on 9 Nov., he moved that Massachusetts rename itself the “Commonwealth of Oceana,” after Harrington's great theoretical tract of that name, published in 1656. See note 37.


The convention decided to confine chapter designations to the Frame of Government, and to call the Declaration of Rights “Part the First,” and the Frame “Part the Second.” In the annotation of the Declaration of Rights, references to articles in the constitutions of other states are to the declarations or bills of rights, which were often numbered separately from the portions of those documents dealing with the form or frame of government.


“Born equally free and independent” had a different ring to it from “born free and equal,” the language chosen by the convention. JA borrowed most directly from Pennsylvania's Art. I, which in turn was taken from Virginia's Sect. I. The convention found the Declaration of Independence more compelling. Over time JA grew increasingly insistent that men were not born equal and that there was no way they could be made equal if one meant more than equality in the eyes of God or in the application of the laws. JA's letters to John Taylor of Caroline in 1814 (JA, Works , 6:447–521) give his fullest views on the subject.


The convention added that it was “the right as well as” the duty of men to worship God.


The words “and season” were added after “manner,” a change that perhaps made Sundays less exclusively the major day for worship. The use of the term “subject” here and in Arts. III, XI, XII, and XIV is unique to the Massachusetts declaration. Other bills of rights use “man,” “person,” or “freeman” everywhere. It may be that “subject” was an inadvertent retention of old usage. Before the Revolution all Americans were subjects of the crown, that is, owed allegiance to the king of Great Britain. The term lingered on and came to mean a person subject to the laws as distinct from a citizen, who enjoyed political rights. But this distinction seems not to have been made by JA, for in Art. X he uses the term “individual” and in Arts. XV and XXVI, “man.”


Some of the language of Art. II is taken almost verbatim from Maryland's Art. XXXIII.


According to JA's own account, he did not write Art. III: “The Article respecting Religion. . . was the only Article which I omitted to draw. I could not satisfy my own Judgment with any Article that I thought would be accepted: and farther that Some of the Clergy, or older and graver Persons than myself would be more likely to hit the Taste of the Public” (JA to William D. Williamson, 28 Feb. 1812, MeHi). In a more revealing oral statement, JA elaborated: “I found I could not sketch, consistent with my own sentiments of perfect religious freedom, with any hope of its being adopted by the Convention, so I left it to be battled out in the whole body” (as stated to Josiah Quincy and recorded in the latter's diary entry for 31 May 1820, in Edmund Quincy, Life of Josiah Quincy, Boston, 1867, p. 379). If JA really thought that “Some of the Clergy, or older and graver Persons” could draft a more popular article, however, he was mistaken. Art. III of the Report caused over a week of contentious debate, and was completely rewritten. The final version was one of the least liked parts of the finished document, and Samuel Eliot Morison demonstrated that the article did not secure the required two-thirds vote for ratification in 1780, although it was declared, with the rest of the Constitution, to be ratified (Morison, “The Struggle over the Adoption of the Constitution of Massachusetts, 1780,” MHS, Procs. , 50 (1916–1917): 263353–411). Massachusetts did not end state support of religion until 1833 (Amendment XI).


Art. V, borrowed freely from Pennsylvania's Art. IV, which resembles Virginia's Sect. 2, was adopted without change.


Art. VI, the idea for which is contained in Virginia's Sect. 4, but which is expanded here, was adopted without change.


Art. VII was borrowed freely from Pennsylvania's Art. V, which in turn owed to Virginia's Sect. 3. JA neglected to include a provision for amending the Constitution in the Frame of Government, but see note 139.


The convention changed “as may be delineated in” to “as they shall establish by,” and added “and appointments” after “regular elections.” Art. VIII is largely paraphrased from Pennsylvania's Art. VI.


The convention deleted the word “male,” although in the Frame of Government voting rights were restricted to males. During the convention more than one attempt was made to exclude “male” from voting qualifications, but the move attracted little support ( Journal of the Convention , p. 92, 120–121, 136). Possibly the deletion of the term in Art. IX had no more significance than that specific voting qualifications were thought best confined to the Frame of Government, as suggested by the addition to this article of the phrase “as they shall establish by their frame of government” after “having sufficient qualifications.” Art. IX is generally patterned after Pennsylvania's Art. VII, which owed a few phrases to Virginia's Sect. 6. That elections “ought to be free” is from declaration No. 8 of England's Bill of Rights of 1689.


Art. X is a paraphrase of Pennsylvania's Art. VIII, but omits mention of that state's protection for those conscientiously opposed to bearing arms. The convention added to Art. X the following: “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.”


Art. XI was patterned after Maryland's Art. XVII, which in turn virtually copied Delaware's Art. 12. The principle of free justice is embodied in Magna Charta, Nos. 36 and 40.


The preceding three rights—to have counsel, to confront witnesses, and to produce proofs—were arranged in reverse order by the convention. It then added to this article JA's Art. XIV, exactly as written. The rest of JA's Art. XII, from “to require a speedy trial,” was omitted in favor of a paragraph that reads: “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.” The convention made no mention elsewhere of the need for unanimity for juries or speedy and public trials. Art. XII, as JA wrote it, has parallels with Pennsylvania's Art. IX, but there is great similarity among all the early bills of rights in providing these particular guarantees.


Adopted by the convention without alteration, Art. XIII most nearly parallels Maryland's Art. XVIII, which closely resembles Delaware's Art. 13, but JA limited the application of the principle to trials for crimes.


The phrases introduced by “but” are from Magna Charta, No. 39.


This article, and every succeeding article in the Declaration of Rights, was renumbered after the convention incorporated JA's Art. XIV into Art. XII. Thus the revised Declaration had thirty articles rather than thirty-one.


Perhaps for consistency, the convention preferred “subject” to “man,” but otherwise it made no changes in Art. XV. See notes 10 and 32. JA's Art. XV, now XIV, was modeled on Pennsylvania's Art. X, but the word “unreasonable” seems to be JA's contribution.


After “persons” the convention added this qualifier: “except in cases in which it has heretofore been otherways used and practiced.” JA's language most nearly follows Pennsylvania's Art. XI; the final reference to causes on the seas and mariners' wages, however, is unique.


JA took Art. XVII (now XVI) almost verbatim from Pennsylvania's Art. XII. The other four states that wrote bills of rights in 1776 provided only for liberty of the press. The convention, after deliberate consideration, rewrote the first half of the article to read: “The Liberty of the press 264is essential to the security of freedom in a state,” and deleted JA's reference to free speech. Boston, when it had the finished constitution under consideration, vigorously protested the convention's failure to provide for free speech (Boston Record Commissioners, 26th Report , p. 132). This right was not added to the Massachusetts Constitution until 1948 (Amendment LXXVII).


The convention dropped the word “standing” but otherwise left Art. XVIII (now XVII) intact. The principles that standing armies require consent and that “Protestants may have arms for their defence suitable to their conditions” are in England's Bill of Rights, Nos. 6 and 7. JA, who followed Pennsylvania's Art. XIII, preferred “common defence” to Pennsylvania's “for the defence of themselves and the state.” North Carolina, which also mentioned the right to bear arms (Art. XVII), did not include self-defense at all. The other states associated arms-bearing with militia service.


Accepted without amendment, Art. XIX (now XVIII) derives largely from Pennsylvania's Art. XIV.


Accepted without amendment, Art. XX (now XIX) was taken from Pennsylvania's Art. XVI. Virginia's bill did not include the right of assembly nor the right to petition the legislature. Delaware (Art. 9) and Maryland (Art. XI) included the latter but not the former. The right to petition the king was stipulated in England's Bill of Rights, No. 5.


The remainder of Art. XXI (now XX) was omitted. Art. XXI drew on both Virginia's Sect. 7 and Maryland's Art. VII, the latter for “authority derived” from legislation. The principle stated goes back to England's Bill of Rights, Nos. 1 and 2.


Arts. XXII–XXV (now XXI–XXIV) were adopted as written. These four articles correspond roughly to Maryland's Arts. VIII, X, XII, and XV. JA expanded these articles, rearranged phrases, and sometimes chose a synonym, but the order and substance plainly indicate borrowing. England's Bill of Rights, Nos. 9 and 13, supplied the principles for the first two of these articles, and both Magna Charta, No. 12, and the Petition of Right, citing the Statutum de Tallagio non concedendo of Edward I, established precedent for the third.


The convention again substituted “subject” for “man” (see notes 10 and 24, above). Art. XXVI (now XXV) most nearly parallels Maryland's Art. XVI.


Arts. XXVII–XXIX (now XXVI–XXVIII) were adopted without alteration. The first is closest in wording to Virginia's Sect. 9, both drawing upon England's Bill of Rights, No. 10. JA's Art. XXVIII expands a little on Delaware's Art. 21 and Maryland's Art. XXVIII, these being identical in wording. The principle was also enunciated in the Petition of Right. JA's Art. XXIX is a rephrasing and expansion of Maryland's Art. XXIX.


The convention added “of the supreme judicial court” after “judges,” and adopted the rest of Art. XXX (now XXIX) without change. Both Delaware (Art. 22) and Maryland (Art. XXX) expressed the principle of impartial justice, but only Maryland sought to secure it in its bill of rights through tenure and fixed salaries. JA had long been an advocate of both.


The convention entirely rewrote Art. XXXI (now XXX) to spell out carefully the principle that each of the three branches of government should never exercise the powers of either of the other two. The convention concluded the article by transposing from JA's preface to the Frame of Government the final phrase beginning, “to the end” (see note 37).


The convention substituted “Part the Second.”


This sentence was deleted by the convention except for the celebrated last clause, which was transposed to end the revised Art. XXX that closed the Declaration of Rights. JA had first used this clause in his seventh Novanglus letter (6 March 1775, vol. 2:314 ), and would use it again, in somewhat different form, in his Defence of the Constitutions, vol. 1, letter 26, “Dr. Price” (JA, Works , 4:403–405). In both places he credits the passage to James Harrington's Commonwealth of Oceana, and points out that the principle received its first recognizable formulation from Aristotle. See L. H. Butterfield, “A government of laws and not of men,” Harvard Magazine, 77:19–20 (Nov. 1974).


Before “Section I,” the convention inserted “Chapter I,” and under that, “The Legislative Power.” The printer 265failed to print under “Section I” of the committee draft, “The Legislature, or General Court,” as noted in his errata (below). The convention changed this to “The General Court.”


The opening clause was altered to read: “The legislative body shall assemble every year”; and after “necessary,” the convention replaced “every year” with “and shall dissolve and be dissolved on the day next preceeding the said last Wednesday in May.”


In one of its most far-reaching decisions, the convention replaced this paragraph, which gave the governor an absolute veto, with two new ones called Art. II, providing for an override of a veto by a two-thirds vote of each branch of the legislature. All his life JA continued to believe that this revision was a serious error, even though the framers of the U.S. Constitution adopted the idea. He believed the chief executive should hold the balance between the two chambers, one ideally representing numbers, the other, property. JA was probably not surprised by the convention's action, however, for he had predicted several years before that Massachusetts would not accept an unqualified executive veto (JA to Roger Sherman, 20 July 1789, JA, Works , 6:432; JA to Elbridge Gerry, 4 Nov. 1779 [below]; JA to James Warren, 12 May 1776, vol. 4:182).


Art. II (now III) was adopted without change. Except for the substitution of “Commonwealth” for phrases indicating the king and his province, the extension of court jurisdiction to cover causes “concerning” as well as between inhabitants or persons brought within the state, and the addition of “or affirmations” after “oaths,” Art. II was taken verbatim from the Charter of 1691 (Thorpe, ed., Federal and State Constitutions , p. 1881).


The phrase “such officers excepted” was dropped by the convention.


The convention added “or affirmations.”


The convention changed the wording from this point up to “within the same” to read: “and to impose and levy proportional and reasonable assessments, rates, and taxes, upon all inhabitants of, and persons resident, and estates lying, within the said Commonwealth; and also to impose, and levy, reasonable duties and excises, upon any produce, goods, wares, merchandize, and commodities whatsoever, brought into, produced, manufactured, or being within the same.”


The final clause beginning “and to dispose of matters and things” was dropped. This long first paragraph of Art. III (now IV) was taken verbatim from the Charter of 1691, with the exception of modifications to eliminate reference to the king and his province and a few other minor changes (Thorpe, ed., Federal and State Constitutions , p. 1882). Other early state constitutions did not list in detail the powers of their legislatures.


The first three words of this paragraph were replaced with a passage that continued existing taxing practices, including the poll tax: “And while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practiced; in order that such. ...” The polls paid about one-third of the taxes raised by the province and state governments. At the time of Shays' Rebellion there was some protest over the proportion of taxes levied on polls, particularly since it had risen a few points. In the Revolutionary period in Connecticut complaints also arose over the inequity of poll taxes. Maryland's Art. XIII in its Declaration of Rights condemned “the levying taxes by the poll” as “grievous and oppressive” and deserving of abolition (Robert J. Taylor, Western Massachusetts in the Revolution, Providence, 1954, p. 138–139; Robert J. Taylor, Colonial Connecticut, A History, Millwood, N.Y., 1979, p. 42).


The convention added here “and as much oftener as the General Court shall order.”


The convention repeated “Chapter I” before “Section II.”


The convention changed the final provision to read: “provided that the number of such districts shall never be less than thirteen; and that no district be so large as to intitle the same to choose more than six Senators.”


Altered to read: “of each town.”


“Person” changed to “inhabitant.” See note 53.


The one-year residency requirement was dropped.


The convention added after “dis-266trict”: “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 use of the term “inhabitant” and its definition here grew out of an investigation made by delegate Levi Lincoln at the request of the convention. Lincoln reported on a law of 1767, last renewed in Nov. 1779, which required town approval for one to acquire the status of an inhabitant as a way of protecting towns from poor or undesirable persons who might become an expense ( Journal of the Convention , p. 71; Mass., Province Laws , 4:911–912; 5:1124–1125). In using terms like “resident” JA had not been sufficiently precise; “reside” did not suggest the permanency of “inhabit.” When the convention revised JA's provision affecting taxes, it made sure that both “all inhabitants” and “persons resident” would be subject to levies (see note 44).


Except for the word “impartially,” the rest of the paragraph was discarded. The next paragraph was merged with this one. “Impartially” was followed by “and shall receive.”


The convention inserted after “towns” the words “present and.”


The convention dropped “however,” and added after “members”: “as pointed out in the Constitution.”


The passage following “declared elected,” up to the semicolon, was altered to read: “shall take the names of such persons as shall be found to have the highest number of votes in each district, and not elected, amounting to twice the number of Senators wanting, if there be so many voted for.”


The words “of the christian religion, and” were deleted, although unsuccessful attempts were made in the convention to substitute “Protestant” ( Journal of the Convention , p. 75).


The convention added here “or possessed of personal estate to the value of six hundred pounds at least, or of both to the amount of the same sum.” An effort to reduce the property qualification to £300, real or personal, failed (same). By including personal estate, the convention opened membership in the Senate to well-to-do men without important land-holdings.


The convention reduced the residency requirement to a simple five years in the Commonwealth prior to election, the candidate being an inhabitant of the district at the time of his candidacy.


Arts. VI, VII, and VIII were misnumbered by the printer. See Errata (below).


In Thoughts on Government JA had mentioned impeachment as a way of removing judges, probably having in mind the attempt of the Massachusetts House of Representatives to impeach Justice Peter Oliver, in which JA himself was heavily involved (vol. 2:7–17). Here all officers are subject to impeachment, as several other early state constitutions provided. Much of the language of this article was copied from Art. XX of the Constitution of 1778.

The convention added to this section on the Senate an Art. IX, which provided a quorum of sixteen for conducting business. JA had neglected to define a quorum for the upper house.


The convention repeated “Chapter I” before “Section III.”


“In” was replaced with “upon the principle of.”


The rest of Art. II was deleted. Some convention members expressed fears that the House would grow too large, but most were willing to leave that worry to the future. In the vigorous debates over representation that took place in the convention, efforts were made to permit every town, regardless of size, to have one representative; or, if not that, to associate with some other town to elect a representative, as JA proposed in this article, adapting the idea from Art. VI of the Constitution of 1778. The only compromise the majority would make was to permit incorporated towns with fewer than 150 ratable polls which then enjoyed the right to choose a representative to continue to exercise that right (William Cushing's notes on the debates, [Oct.? 1779], “Commissions,” Cushing Papers, MHi; Journal of the Convention , p. 122–123).

Also as a part of Art. II, the convention gave the House the right to fine 267towns qualified to send a representative if they failed to do so and stipulated that travel costs from and to home once in a session would be paid out of the public treasury. It rejected a proposal to have salary as well as travel so paid ( Journal of the Convention , p. 124). In the provincial period both pay and travel were charged to each town sending a representative; consequently, many towns found it cheaper not to be represented.


“Every member” was substituted for “The members.”


The provision requiring a representative to be a Christian was deleted, but efforts were made in the convention to restore the requirement, and also to add “Protestant” after “christian” (same, p. 97).


In this clause the convention deleted “or towns” after “town,” and provided for an alternative property qualification—any estate ratable at £200.


The convention's failure to change “resident” to something like “an inhabitant of” was probably an oversight. See note 53.


“Any estate” was substituted for “other estate,” and the convention struck out “real, or personal or mixt.”


The final phrase was deleted.


The rest of the paragraph was dropped. JA may have been influenced by Pennsylvania's wording: “the house . . . shall consist of persons most noted for wisdom and virtue” (Sect. 7, Thorpe, ed., Federal and State Constitutions , 5:3084).


Here the convention inserted: “shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the Constitution.” JA's failure to include these principles, which he provided for the Senate, must have been an oversight.


The convention inserted here “not a member.”


The convention transposed “in its presence” to follow “behaviour.”


The rest of this article was rewritten. The convention did not give special mention to House officers, nor did it extend immunity from arrest to cases of debt. It did specifically forbid the arrest of witnesses or others ordered to appear before the House.


An additional paragraph to Art. XI gave the two legislative branches power to try all cases of breach of their privileges.


The convention relabeled this Chapter II.


JA took the honorific for the governor from Art. II of the Constitution of 1778.


At this point the convention stipulated that the sheriff was required to send the returns to the secretary's office seventeen days before the last Wednesday in May. The addition caused minor changes in wording. The selectmen's sending the returns directly to the secretary was kept as an alternative procedure.


Altered to “all the votes returned,” with “through the Commonwealth” being deleted.


The convention removed Art. IV, rewrote the two-part oath so that it would cover the governor, lieutenant governor, Council members, and legislators, and transferred the whole oath to a separate chapter that covered a variety of subjects, Chapter VI. The first part of the oath was kept substantially intact despite the convention's elimination of “christian” from the qualifications for Council members and legislators. The second part of the oath, now meant as well for any person appointed or commissioned, was greatly lengthened. One had to declare that Massachusetts was rightfully “a free, sovereign and independent State,” that one abjured Great Britain and all other foreign powers, civil and ecclesiastical, and that no one could discharge the taker from the oath's obligations. Quakers were specifically allowed to make affirmation rather than swear.


“According to law” was struck out in favor of “agreeably to the Constitution and the laws of the land.” Art. V, which became Art. IV, was taken nearly verbatim from the Charter of 1691 (Thorpe, ed., Federal and State Constitutions , 3:1878), though with a quorum of five, not seven.


The convention reversed the order of the two situations, putting first what could be done during a session and second what could be done during a recess. The convention did not provide that a dissolution of the legislature could, like an adjournment, be at the request of the two houses, and it changed the day for dissolution to that preceding the last Wednesday in May. Added to Art. VI (now V) was the governor's power to 268change the place of meeting of the General Court if communicable disease threatened, or if the lives of the members might be jeopardized by any other cause.


The words “necessity, expediency or” were inserted here.


The convention included the stipulation that the governor's adjournment could not exceed ninety days.


The word “chief” was struck out.


“To be appointed by him” was deleted.


The convention preferred “repel, resist, expel and pursue.”


Rewriting produced “slay and destroy, if necessary.”


The passage was altered to read: “war or invasion, and also in time of rebellion, declared by the Legislature to exist,” which last phrase significantly limited the governor's power.


The governor's power to establish and demolish forts and fortified places was deleted.


“In fine” was dropped.


The convention inserted “these and.”


The convention added “and not otherwise.”


The rest of Art. VIII (now VII) was struck out. If it had remained, it could have caused confusion with respect to Art. XXIX (now XXVIII) in the Declaration of Rights, which requires legislative, not Council, approval for imposing martial law upon civilians. The convention concluded the present article: “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.” The convention had in mind the possible need to go through New Hampshire to reach the district of Maine. With minor modifications made necessary by changed circumstances, this entire article, in the version presented in the Report, was taken almost verbatim from the Charter of 1691 (Thorpe, ed., Federal and State Constitutions , 3:1884).


The denial of any pardon power before conviction was more extensively stated here than in any other early state constitution and was a departure from English practice. William Blackstone held that a royal pardon could be pleaded at arraignment, before judgment, or to prevent carrying out a judgment (Commentaries, 4 vols., Phila., 1771–1772, 4:258, 392, 394–395). Only New Jersey and New York limited the timing of a pardon. New Jersey permitted pardons “after condemnation,” a term of uncertain meaning, since it could mean either a jury's verdict of guilty or a judge's sentence. New York gave the governor power to pardon “those convicted of crimes,” except murder or treason. Probably JA's intention was to prevent those charged with crimes from being pardoned before the facts of their crimes were exposed to public view. See Robert J. Taylor, “Lawyer John Adams and the Massachusetts Constitution,” Boston Bar Journal, 24:25–26, (Oct. 1980).


The convention dropped “Registers of Maritime Courts.”


The convention replaced this article with a much longer one that denied the governor the power to appoint militia officers, in favor of the old tradition under which the officers were elected by the militiamen. These in turn were to elect field officers, who were to elect brigadiers. Major generals were to be chosen by the two legislative houses, each with a veto on the other. The governor was limited to commissioning officers elected and determining their rank in order of seniority. Commanding officers were left free to name their adjutants and aides. Only the adjutant general was to be named by the governor.


Altered to read “No monies . . . but by warrant.” Art. XII (now XI) was provided with an exception inserted after “disposed of”: “(except such sums as may be appropriated for the redemption of bills of Credit or Treasurers notes, or for the payment of interest arising thereon).” JA's language in Art. XII came nearly verbatim from Art. XXXIII of the Constitution of 1778, except that in the 1778 document, the Senate rather than the Council had to approve the warrants.


The convention deleted Art. XIV's provision for rotation in the office of governor. Most other early state constitutions made some such provision.


Changed in accordance with the new name of the state's highest court to read: “Justices of the supreme judicial court.” See Chapter IV, Art. III, and note 124.


The convention inserted “Chapter II” above “Section II.”

269 104.

The convention deleted the rest of this heading (see note 110).


JA took this honorific from Art. II of the Constitution of 1778.


This sentence was completely rephrased by the convention.


“Votes” was changed to “all the votes returned.”


Art II was rearranged and expanded to read: “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.”


Here the convention inserted: “perform all the duties incumbent upon the Governor, and shall.”


The convention transferred the substance of Arts. IV and V to the new Chapter VI, where they appeared in condensed form as Art. III. Instead of “respective values, assigned . . . to” property in the draft's Art. IV, the new article refers to all “sums of money” mentioned. For the draft's Art. V the convention limited the legislature's right to increase qualifications “as to property” only.


The convention inserted “Chapter II” above “Section III.”


The convention deleted “Oaths to be taken, &c.” (see note 116).


The phrase “out of the persons returned for Counsellors and Senators” was moved down to follow “annually chosen,” and “from among” was substituted for “out of.”


At this point the convention provided that if “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.” The convention then dropped JA's last clause, since under the new alternative provision, the Senate could have more than thirty-one members.


The word “county” should have been “district.” This printer's error was acknowledged in the errata page at the end of the Report (below).


The convention removed Art. VIII from this section and incorporated its substance into Chapter VI, Art. I, at the end of the Constitution.


The convention inserted “Chapter II” above “Section IV.”


Inserted here was: “who may appoint his Deputies, for whose conduct he shall be accountable.” The word “who” that follows was replaced with “and he.”


The convention relabeled this Chapter III.


The convention inserted the following: “excepting such concerning whom there is different provision made in this Constitution.”


Removal of judges by address was taken from England's Act of Settlement of 1701, Sect. 7. South Carolina also provided for removal by address of the legislature in both its 1776 and 1778 constitutions (Thorpe, ed., Federal and State Constitutions , 6:3246, Art. XX; 6:3254, Art. XXVII). The provision for address in Maryland's 1776 constitution required a two-thirds vote of all members in each legislative house (Declaration of Rights, Art. XXX, in Thorpe, ed., Federal and State Constitutions , 3:1689).


The clause following the colon was struck out.


JA's Art. II was dropped because the new Chapter VI, Art. II, in the Constitution as adopted, listed these justices and many other officeholders as disqualified from a seat in the General Court.


The convention modified Art. III (now II) to allow the House as well as the Senate to seek a judicial opinion, not from “the Judges,” but from “the Justices of the supreme judicial court.”


“Shall be determined by the Senate” was struck out.


The convention relabeled this Chapter IV, and shortened its title to “Delegates to Congress.” The other matters treated in Arts. II–III and V–VII were moved to the new Chapter VI, at the end of the Constitution, where they became Arts. IV–VIII.


“Of America” was deleted.


The time of election was changed to “some time in the month of June annually” with no reference to whether the General Court was sitting.


Added here was the following: “to serve in Congress for one year, to commence on the first Monday in November then next ensuing.”


Art. II became Art. IV under the 270new Chapter VI.


The convention changed “the Chief Justice ... of the court” to “the first Justice.” JA's language closely parallels that of Art. XXXI in the Constitution of 1778. This article became Art. V of the new Chapter VI.


The convention dropped Art. IV from the Constitution.


In changing Art. V to Art. VI under the new Chapter VI, the convention shortened the wording to this point by avoiding repetition and eliminating “the common law, and all such parts of the English or British statutes.” The new article begins: “All the laws which have heretofore been adopted.” JA took his language largely from Art. XXXII of the Constitution of 1778.


Art. VI became Art. VII under the new Chapter VI. The proper limitation to put upon the legislative suspension of the privilege of habeas corpus was one of the more extensively debated issues in the convention. The final wording of Art. VII substituted for JA's concluding phrase: “for a limited time not exceeding twelve months.” A number of convention members sought greater curbs on this legislative power. They would have restricted suspension to not more than forty days and applied it only in wartime to those “charged with being in the interest of the enemy.” These proposals were voted down 21 to 14 in February, when relatively few delegates were in attendance. A tie vote on the twelve-month limitation was broken by convention president James Bowdoin, who supported it. A proposal to restrict suspension to “time of war, rebellion, or invasion, declared or apprehended by the Legislature” brought another tie vote, with Bowdoin upholding the simple twelve-month limitation ( Journal of the Convention , p. 66–67, 92–93, 149–150, 168). The U.S. Constitution, in Art. I, Sect. 9, permits suspension only “when in Cases of Rebellion or Invasion the public Safety may require it.” The town of Boston later protested against the insufficient limits in the state document (Boston Record Commissioners, 26th Report , p. 133). Of the early state constitutions, only Georgia's declared that “the principles of the habeas-corpus act shall be a part of this constitution” (Art. LX; Thorpe, ed., Federal and State Constitutions , 2:785). If Georgia's reference is to the English statute of 1679 (31 Car. 2, c. 2), however, that act offered no protection against legislative suspension.


Art. VII became Art. VIII in the new Chapter VI. The convention deleted all reference to the governor, the lieutenant governor, and the Council. JA's inclusion of the chief magistrate is in keeping with his insistence that he should be considered a third branch of the legislature. The convention copied the enacting style of the Constitution of 1778 (Art. XIII).


The convention relabeled this Chapter V.


This section of the constitution was drafted mainly by a Harvard College committee. Convention president James Bowdoin had alerted Harvard's president that the drafting committee had been instructed to prepare an article confirming the school's privileges. A committee of the Harvard Corporation prepared Arts. I and II, which were approved by the full Corporation and by the Overseers, and then submitted to the convention's drafting committee for approval. Art. III was apparently written by the drafting subcommittee, and thus perhaps by JA, rather than by the College (JA, Works , 4:258–259, note 2).


JA gave a detailed account of the genesis of this section of the constitution, one that he regarded as particularly his and a source of great satisfaction in that the convention accepted it without alteration (except that “legislators and magistrates” became “legislatures and”). Of central importance was his keen interest in the natural history collections that he had seen on his travels to and from the Continental Congress and in France, and his admiration for the American Philosophical Society in Philadelphia and the learned societies of France and England. These feelings prompted JA, at a dinner held at Harvard on 24 Aug. 1779 to honor the new French minister to the United States, the Chevalier de La Luzerne, to propose to the Rev. Samuel Cooper the founding of a learned society in Boston that might emulate those of Philadelphia and Europe. Cooper and others took up this idea, and in May 1780 they secured a charter for the American Academy of Arts and Sciences from the Massachusetts legislature (JA to 271Benjamin Waterhouse, 7 Aug. 1805, MHi; and see JA, Works , 4:259–260, note 1; and Adams Family Correspondence , 3:224–226, note 3).

Although he does not mention it, JA may also have been encouraged to include this section in his draft by a passage in Pennsylvania's constitution, which he had found so useful as a guide in listing the fundamental rights of all citizens. That document, in Sect. 44, not only called for the establishment of schools in each county but added “all useful learning shall be duly encouraged and promoted in one or more universities.” Coincidentally, the General Court on 28 May 1779 had appointed a five-man committee, composed of Robert Treat Paine, John Pickering, Col. Loammi Baldwin, Theophilus Parsons, and Samuel Phillips Jr., to prepare a resolve “for the encouragement of learning in this State” (Mass., House Jour. , 1779–1780, 1st sess., p. 10). Although no report appears to have been made, all of these legislators except Baldwin were later members of the convention, and Paine, Parsons, and Phillips were members of the committee of thirty assigned to draft the constitution. These possible influences in no way detract from JA's enlightened conception of government's positive role in promoting the intellectual, cultural, and technological advancement and well-being of its people, a conception that his son, as president, took for his own.


The convention relabeled this last part of the Constitution “Chapter VI,” and completely revised and greatly expanded it. The new chapter's Art. I, which contained the oaths of officeholding, drew upon and expanded parts of the Report's Chapter III, Sect. I (on the governor), and Sect. 3 (the Council). Art. II applied the prohibition against plural officeholding made in Chapter IV of the Report (the judiciary) far more broadly and in much greater detail. Art. III came from Chapter III, Sect. 2 (lieutenant governor); and Arts. IV–VIII from Chapter V (delegates to congress, etc.). The specific articles or parts of articles transferred are indicated in the notes to those chapters and sections. The Report's “Chapter VII. and last” then became Art. IX of the new chapter, and the convention added Arts. X and XI. Art. X provided for amendment of the Constitution by a procedure to be instituted in 1795. JA had neglected to include a scheme for amendment, presumably through oversight. According to William Gordon, JA had delivered a speech in an early session of the convention in which he argued 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” (Independent Chronicle, 4 May 1780). Art. XI provided for enrolling the constitution on parchment and depositing it in the secretary's office.


On Thursday afternoon, 28 Oct., the convention ordered the printing of the Declaration of Rights, whose fifteen-page text was distributed the following morning. The printer, without altering this first section, then continued setting type for the rest of the Report, and on Monday morning, 1 Nov., the entire fifty-page pamphlet was distributed to convention members. This list of “errors” on the last page of the Report includes alterations made by the convention in the Preamble and in Arts. I and II of the Declaration of Rights. The last-named change occurred on Saturday morning, 30 Oct. Thus the printer set the type for the “Errata” late on Saturday or on Sunday. The other errors listed, which appear on pages 15, 23, and 39 of the text, were printer's errors. See the Journal of the Convention , p. 35, 36, 38; and the concluding section of the Editorial Note preceding the text of the Report (above).


The printer omitted “free” at this point.