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A BRIEF HISTORY OF THE 
 
 CONSTITUTION AND GOVERNMENT 
 
 OF MASSACHUSETTS 
 
 WITH A CHAPTER ON LEGISLATIVE PROCEDURE 
 
 BY 
 
 LOUIS ADAMS FROTHINGHAM, LL.B. 
 
 SPEAKER, MASSACHTTSETTS HOUSE OF REPRESENTATIVES, 1904-1905 
 
 LIEUTENANT-GOVERNOR OF MASSACEniSETTS, I908-19IO 
 
 LECTURER AT HARVARD UNIVERSITY ON STATE AND 
 
 CITY GOVERNMENT IN MASSACHUSETTS 
 
 CAMBRIDGE 
 
 PUBLISHED BY HARVARD UNIVERSITY 
 
 1916 
 
COPYKIGHT, I916 
 LOUIS A. rSOTHraOHAM 
 
PREFACE 
 
 This small volume is the outgrowth of a series of lectures 
 given at Harvard University. It is put forth primarily for 
 the use of students there, but it may also prove of assistance 
 to the members of the General Court, to those who are 
 interested in constitutional and historical matters, and at 
 the present time, when a constitutional convention is con- 
 templated, to those who may serve as delegates. 
 
 A book recently issued by the Commission on Economy 
 and EflSciency entitled Functions, Organization, and Admin- 
 istration of State Government, covers the duties of the State 
 officers and the Boards and Commissions, so I have omitted 
 any detailed description of the powers and functions of those 
 officials and bodies. 
 
 I wish to express my appreciation of the kindness of 
 Professor Edward Channing who was good enough to read 
 the chapters on the early history. To the efficient Clerk 
 of the House of Representatives, Mr. James W. Kimball, 
 who read the chapter on Legislative Procedure, I owe thanks 
 for valuable suggestions. To Professor W. B. Munro, who 
 advised publication and revised the material, I owe the 
 encouragement to begin as well as to complete the work. 
 
 The author is conscious of many omissions and short- 
 comings in this book, but has endeavored to include in it 
 data that seemed of most importance to those interested in 
 study or casual investigation of constitutional and legislative 
 matters. His apology for publication, if any be needed, is 
 that the subject-matter here dealt with has not been hereto- 
 fore set forth in any one volume. 
 
 L. A. Frothingham. 
 
 Boston, Massachusetts, 
 September, 1915. 
 
CONTENTS 
 
 CHATTER 
 
 Preface 
 
 I. Early Forms or Government 
 II. The Constitution of Massachusetts . 
 
 III. The Constitutional Convention of 1820 
 
 IV. The Constitutional Convention of 1853 
 V. The General Court . . 
 
 VI. The Governor . 
 VII. Legislative Procedure 
 
 Index 
 
 PAGE 
 
 iii 
 
 3 
 
 25 
 
 40 
 
 SI 
 60 
 
 73 
 
 90 
 
 129 
 
A BRIEF HISTORY OF THE 
 
 CONSTITUTION AND GOVERNMENT 
 
 OF MASSACHUSETTS 
 
A BRIEF HISTORY OF THE 
 
 CONSTITUTION AND GOVERNMENT 
 
 OF MASSACHUSETTS 
 
 CHAPTER I 
 
 EARLY FORMS OF GOVERNMENT 
 
 The Plymouth Colony 
 
 Though the Plymouth Colony lasted as a separate entity 
 less than a century, the founding of the Pilgrim Colony at 
 Plymouth really marks the beginning of Massachusetts 
 history. 
 
 This Pilgrim scheme of government and its development 
 are of vital interest to the student of Massachusetts constitu- 
 tional history. Historians say that the compact signed on 
 board the Mayflower was not a constitution, as it did not 
 create a government, yet that document is nevertheless of 
 vast importance, and far more than a mere historical manu- 
 script. It showed the desire for a government in which 
 every one was to share, and within four months of landing, 
 moreover, a captain was chosen, a treaty with the Indians 
 was concluded, laws and orders were passed, and a governor 
 was elected. 
 
 The Beginnings of Government 
 
 The colonists tried to obtain a charter but never suc- 
 ceeded in doing so. They governed under authority of a 
 patent granted in 1621 by the Council for New England.^ 
 
 ' This body was established in 1620 by a reorganization of the Plymouth 
 Company. It was given rights of government over all the territories in- 
 cluded in its charter. This charter may be found in Ebenezer Hazard's 
 Historical Collections, i, p. 103. 
 
 3 
 
4 MASSACHUSETTS GOVERNMENT 
 
 In 1629 another patent was granted. All freemen, who were 
 church members, met together as a General Court. Here 
 legislation was enacted, and up to 1636 all trials were also 
 held before this body. In that year, however, the laws were 
 revised, the government established on a permanent basis, 
 the powers of the Governor and Assistants were defined, and 
 the Governor and two Assistants were given certain jurisdic- 
 tion over trials. This office of Assistant to the Governor had 
 been provided for in 162 1, and although at first there was 
 only one Assistant (to succeed the Governor in case of 
 death), the number was gradually increased to seven. 
 
 The General Couet 
 
 As the settlements increased in number, it was no longer 
 convenient or feasible for all the people to meet as a General 
 Court so deputies were provided for, and in 1639 these 
 deputies were chosen and assembled together from different 
 towns. The towns paid their own delegates and this mode 
 of payment, as we shall see, was customary in Massa- 
 chusetts. It was not until some time after the adoption 
 of a Constitution in Massachusetts that the burden was 
 taken away from the individual towns and placed upon 
 the state treasury. 
 
 The General Court in Plymouth could enact laws but they 
 had to be acted on by two Legislatures, and the freemen 
 could repeal them at the next general election, and enact any 
 other useful measures.^ What a curious provision this seems 
 to us now! In colonial days we had such safeguards thrown 
 about the enactment of a mere law as are now usually 
 applied only to a constitutional amendment; yet the re- 
 quirement that an amendment even to such an important 
 
 ' Baylies, Memoirs of Plymouth Colony, i, p. 297. 
 
EARLY FORMS OF GOVERNMENT 5 
 
 document as the Constitution should be passed by two 
 successive Legislatures is vigorously attacked nowadays as 
 being too lengthy a proceeding. 
 
 At the same time, we find in the Plymouth government a 
 species of referendum and initiative which these same critics 
 might applaud. It is often said that there is nothing new 
 under the sim. Here we find an additional confirmation of 
 the truth of that saying. But one cannot find much that 
 is analogous between such a small colony where every one 
 could easily keep in touch with what was going on, and 
 our present-day communities. 
 
 The Courts of the Plymouth Colony 
 
 Courts had gradually grown up in the colony with the 
 common law of England as the basis of jurisprudence. As 
 early as 1623 a jury of twelve was provided in cases of crimi- 
 nal facts of trespass and debts. There were four courts — 
 the General Court meeting three times a year, the Court of 
 Assistants also meeting three times a year and trying civil, 
 criminal and appeal cases, a Selectmen's Court for cases 
 under forty shillings between inhabitants of the town, and 
 an Admiralty Court consisting of the Governor and three or 
 four Assistants together with such other substantial persons 
 as the Governor might appoint; and in 1685 — the General 
 Court having divided the colony into counties consisting of 
 Pljonouth, Bristol and Barnstable — two County Courts in 
 each county were provided for, to be held by the Assistants. 
 
 The End of the Plymouth Colony 
 
 Thus did the system of government grow up and develop 
 in the Pilgrim Colony. What its results might have been 
 had it remained a separate entity, is a matter only of con- 
 jecture. We might have today a church govenmient and we 
 
6 MASSACHUSETTS GOVERNMENT 
 
 might have a government with the initiative and referendum 
 applied on a wide scale. Such suggestions, however, can 
 be but surmises, because under the charter granted by 
 William and Mary establishing the Province of Massa- 
 chusetts Bay in New England, Plymouth became part of 
 Massachusetts and from that date (1691) her history has 
 been the history of Massachusetts. 
 
 Unlike the Plymouth colonists, the men of Massachusetts 
 Bay obtained a charter from the Crown. The original one 
 granted by Charles I estabUshed the Governor and Com- 
 pany of Massachusetts Bay, a corporate body composed of 
 a Governor, Deputy-Governor and eighteen Assistants. 
 
 The Colony Charter 
 
 Two charters were granted Massachusetts. The first one 
 was given by Charles I, in 1628, and is known as the Colony 
 Charter.^ Under this charter, the first governor, deputy- 
 governor and assistants were appointed by the Crown. 
 Their successors were to be elected by the freemen of the 
 corporation. The executive power was vested in the gover- 
 nor and assistants and the legislative power in the whole 
 body of the freemen. Considering the opinions on govern- 
 ment held by Charles I and his coimsellors, it may seem 
 surprising that such a Uberal charter was obtained. If this 
 were due to extraordinary enlightenment on their part, it 
 would indeed be surprising. On investigation, however, 
 we find that the charter was granted according to the custom 
 of the times; and we discover many other precedents for 
 such charters. In 1463, for example, a charter was granted 
 by Edward VI to the Merchants Adventurers trading with 
 Flanders. Even as far back as the days of Henry I, in fact, 
 
 '■ This may be found in William Macdonald's Documentary Source 
 Book of American History, pp. 22-26. 
 
EARLY FORMS OF GOVERNMENT 7 
 
 charters were given to merchant guilds. A notable charter 
 was given to the East India Company by Elizabeth in 1599. 
 Thus the charter of 1628 was not an unusual document. 
 This charter and its successor granted under William and 
 Mary were really constitutions. To quote Lord Bryce, a 
 constitution is " a frame of government established by a 
 superior authority creating a subordinate law-making body 
 which can do everything except violate the terms and trans- 
 cend the powers of the instrument to which it owes its 
 existence." The supreme authority under all charters, was 
 the Crown or Parliament. This supreme power passed, when 
 independence was later obtained, not to the legislature but to 
 the people of an independent commonwealth. In a democracy 
 they are the source of all power, the members of the Legis- 
 lature being elected by them, and consequently their agents. 
 
 The charter of 1628 was not brought over to this country 
 by Governor Endicott and the first colonists who settled at 
 Salem. In 1630, however, Winthrop and other settlers 
 reached Salem, and brought the charter with them. Win- 
 throp became Governor both of the company and of the 
 colony. The legal justification for the transfer of this 
 charter was the subject of controversy at the time and 
 has been since. The step was taken, however, with legal 
 advice, and was afterwards sustained in England by court 
 decisions. There was nothing in the charter to prohibit 
 its removal and its presence in Massachusetts was a strong 
 guarantee of the vitality and endurance of the charter as 
 well as of the liberties of those who were to live under it. 
 No one was admitted as a freeman who was not a church 
 member. This regulation continued substantially in force 
 until the dawnfall of the charter in 1684. 
 
 By the terms of the first charter, the principal officers, as 
 we have seen, were to be chosen directly by the freemen. It 
 
8 MASSACHUSETTS GOVERNMENT 
 
 was agreed at first that the freemen should choose the assist- 
 ants and that they from among themselves should choose 
 the governor and deputy. This method was too aristo- 
 cratic, however, to last, and the next spring, in 163 1, an 
 order was passed that at least once a year it should be lawful 
 for the people to choose assistants. In 1632, at the next 
 General Court, it was voted that the governor, deputy- 
 governor and the assistants should be chosen every year by 
 this body. This first charter, after safely running the gaunt- 
 let of dangers on many occasions, was finally annulled under 
 Charles II in 1684, through quo warranto proceedings. 
 
 The Eabxy Coxirts of Massachusetts Bay 
 
 Courts had gradually grown up in the colony of Massa- 
 chusetts Bay. At first all judicial matters came before the 
 General Court or before the Court of Assistants, or the 
 Magistrates as they were called, except cases that were 
 cognizable by a justice of the peace. Trial by jury prevailed 
 at first only in cases of murder. In September, 1635, how- 
 ever, grand juries were provided for, and County Courts were 
 established as the population increased. These were com- 
 posed of Assistants who lived in the county or such others as 
 they could get to sit with them and of citizens nominated 
 by the freemen of the county and approved by the General 
 Court.' The idea was to have five in all, any three of whom 
 could hold court. They could try all causes except murder 
 cases or crimes pxmishable by banishment. Grand and petit 
 juries were summoned to attend them. Appeals could be 
 taken to the Court of Assistants and from them to the 
 General Court. There were petit courts in various towna 
 for the trial of cases of small debts and trespass. In certaiit 
 
 ' Thomas Hutchinson, History of Massachusetts, vol. I, pp. 397-401. 
 
EARLY FORMS OP GOVERNMENT 9 
 
 cases, too, where minor offenses had been committed or 
 town by-laws violated, the selectmen had jurisdiction. An 
 admiralty court also existed. The whole arrangement was 
 crude, as may be seen. Though lawyers frequently were 
 elected Assistants, this was not necessarily the case. Even 
 after the establishment of the Superior Court we find a lay- 
 man as Chief Justice.* That the court did not always follow 
 the verdict of the jury is shown by a letter from Mr. Stough- 
 ton to the Governor of Plymouth in 1681: 
 
 The testimony you mention against the prisoner I think is clear and 
 sufficient to convict him, but in case your jury should not be of that 
 mind then if you hold yourself strictly obliged by the laws of England 
 no other verdict but ' not guilty ' can be brought in, but according to 
 our practice in this jurisdiction we should punish him with some 
 grievous punishment according to the demerit of his crime though not 
 found capital. 
 
 Division of the General Court into Two Bodies 
 
 The Court of Assistants, consisting of the Governor, 
 Deputy-Governor and Assistants, met monthly or oftener, 
 while the General Court met four times a year, the Assis- 
 tants, Governor and Deputy- Governor sitting with them. 
 In the absence of the General Court, the action of the Court 
 of Assistants was given the same force as the action of that 
 body. Laws passed by either were valid when not contrary 
 to the laws of England. Just as in the Plymouth Colony it 
 was found expedient to do away with the practice of having 
 all the freemen mee!t together in a general court, so in Massa- 
 chusetts provision was in 1634 made for choosing two or 
 three men to represent the towns. This action was taken 
 partly because the growth of the colony rendered it difl&cult 
 to transact business with such a large body of men, and 
 partly because the citizens of Watertown protested against 
 1 Lieut.-Govemor Hutchinson. 
 
lO MASSACHUSETTS GOVERNMENT 
 
 a tax levied on them, as they claimed, without their con- 
 sent. Even after this representative body was established, 
 the Assistants still sat with them as one body and it was not 
 until 1644 that an act was finally passed separating the two 
 bodies so that they henceforth sat apart. Great events 
 seem to be often decided by seemingly trivial occurrences; 
 for according to John Fiske it was owing to a controversy in 
 regard to a stray pig that the Legislature of Massachusetts 
 Bay Colony was divided into two separate bodies. 
 
 A stray pig had been impounded by one Captain Keayne, 
 founder and first commander of the Ancient and Honorable 
 Artillery Company, and also donor under his will of a sum of 
 money for the erection of what was the first town-house in 
 Boston. The pig was claimed by a widow named Mrs. Sher- 
 man. She brought suit in the law courts without success and 
 then went to the General Court. A majority of the deputies 
 voted in her favor but a majority of the Assistants voted 
 against her. As it was a mooted point whether they sat as 
 one body or as two, the case could never be decided; but it 
 was owing to this controversy, writes Fiske, that an act was 
 later passed providing that the two bodies should sit sepa- 
 rately, with co-ordinate jurisdiction.* 
 
 This makes a very effective story but according to another 
 historian the separation came about because of a division 
 over the request of the people of Newtown to remove to 
 Connecticut.^ Fifteen of the deputies together with the 
 governor and two of the Assistants were in favor of granting 
 this request while ten deputies and the rest of the Assistants 
 were opposed, " whereupon no record was entered because 
 there were not six assistants in the vote as the patent re- 
 quired." Undoubtedly, there were numerous controversies 
 
 ' John Fiske, Beginnings of New England, p. 107. 
 
 " J. S. Barry, History of Massachusetts, First Period, pp. 273, 274. 
 
EARLY FORMS OF GOVERNMENT 1 1 
 
 which led to the final division, and that, after all, is the 
 important thing. 
 
 Establishment of Royal Government 
 
 James II, by the appointment of Dudley as Governor, 
 organized the first Royal government of Massachusetts in 
 1685. Dudley was succeeded the next year by Andros. The 
 Crown gradually took over all colonial governments, both 
 proprietary and charter, except those of Pennsylvania and 
 Maryland on the one hand, and of Rhode Island and Con- 
 necticut on the other, though declaring a right to take these 
 as well. From 1684 to 1691 the Massachusetts colony was 
 governed exclusively by these agents of the King, and repre- 
 sentative government for the time being ceased to exist. 
 
 The Province Charter 
 
 In the year 1691 a new charter was granted the colony by 
 William and Mary. This is commonly known as the Prov- 
 ince Charter.! Strange to say, it was much less liberal in 
 its terms than the original one granted by Charles I, who 
 was supposed to typify despotic power. The new charter, 
 for instance, took away the right of the colonists to elect 
 their governor, and provided that there should be a Gover- 
 nor, Lieutenant-Governor and secretary appointed by the 
 Crown. It also provided that " in the framing and passing 
 of all such orders, laws, statutes and ordinances and in aU 
 elections and acts of government whatsoever to be passed, 
 made or done by the said General Court or Assembly, or in 
 council, the Governor . . . shall have the negative voice." 
 His consent in writing was necessary. Laws were to be sent 
 to England for approval or disapproval, and if not disap- 
 
 ' This may be found in William Macdonald's Documentary Source Book 
 of American History, pp. 84-90. 
 
12 MASSACHUSETTS GOVERNMENT 
 
 proved within three years after presentation they were to be 
 in force. The Governor was to have command of the militia 
 but he could not grant commissions for the exercising of 
 martial law without the advice and consent of the Council 
 or Assistants. In case of the death or absence of the 
 Governor, the Lieutenant-Governor took his place, and 
 in the absence of both the Governor and the Deputy- 
 Governor, the majority in the Council was in charge of 
 provincial affairs. Admiralty jurisdiction and the creation 
 of admiralty courts were reserved to the Crown. Instead of 
 eighteen Assistants twenty-eight " assistants or counsellors 
 to be advising and assisting to the governor," were provided 
 for. Instead of being chosen by the people they were to be 
 chosen yearly by the General Court or Assembly. Thus the 
 word council came to be used as we find it today, though the 
 Council at this time resembled more our present-day Senate 
 than the Governor's Council as we now know it. It was 
 both a legislative body, acting as an upper house and an 
 advisory body, acting as assistant to the governor. 
 
 Under this charter Plymouth, Maine and Nova Scotia 
 became part of Massachusetts. Eighteen at least of the 
 Assistants were to come from what was formerly the colony 
 of Massachusetts Bay, four at least from Plymouth, three 
 at least from what was formerly called the Province of 
 Maine and one at least from the territory lying between the 
 river of Sagadehock and Nova Scotia. 
 
 The Councillors, or at least seven of them, were to sit 
 from time to time, when called together by the Governor. 
 A General Court was to be held annually, on the last 
 Wednesday of May, to consist of the Governor and Council 
 and such freeholders as should be elected or deputed by the 
 major part of the freeholders. Each town could elect two 
 representatives and no more, and the General Court was 
 
EARLY FORMS OF GOVERNMENT 1 3 
 
 given the right to declare what number each county, town 
 and place should elect. A freehold estate of the value of 
 forty shillings or other estate to the value of forty pounds 
 was the qualification for voting. 
 
 The Distribution of Powers under the 
 Province Charter 
 
 The General Court was empowered to establish courts of 
 record. The Governor, with the advice and consent of the 
 Council or Assistants, had the appointment- of judges, com- 
 missioners of oyer and terminer, sheriffs, provosts, marshals, 
 justices of the peace and other officers attached to the Coun- 
 cil and courts of justice. No such nomination or appoint- 
 ment of officers, however, was to be made without seven 
 days' notice to the Councillors or Assistants. 
 
 This Province Charter took away from the Governor and 
 Council all jurisdiction over judicial matters except the pro- 
 bating of wills and granting of administrations. Appeal was 
 given from the courts of the province in any personal action 
 where the matter in dispute was over three hundred pounds, 
 to the King in Privy Council. The General Court was given 
 power to legislate so long as it did not pass laws repugnant to 
 the laws of England. It also was given the power of ap- 
 pointing all civil ofl&cers that the Governor and Council did 
 not have the power to appoint. Oaths had to be taken for 
 the faithful performance of their duties by all officers ap- 
 pointed or chosen, as well as the oaths provided by act of 
 Parliament passed in the first year of the King's reign. The 
 Governor was to take the oath before the Lieutenant or 
 Deputy-Governor, or in his absence before any two or more 
 of the Councillors; the Deputy-Governor and the Council- 
 lors before the Governor; and all other officers before the 
 
14 MASSACHUSETTS GOVERNMENT 
 
 Governor or Deputy-Governor or any two or more of the 
 Councillors. 
 
 Under this Province Charter the Governor had power to 
 prorogue or dissolve the General Court, but no power was 
 given the General Court to adjourn itself. This caused dis- 
 satisfaction. Disputes had also arisen as to the right of the 
 Governor to veto the election of a Speaker. Governors 
 Dudley and Shute had each put a negative on the election of 
 a Speaker, but the House in each case had refused to ac- 
 quiesce.' Governor Hutchinson vetoed the election of John 
 Hancock as Speaker. To clear up these matters an explana- 
 tory charter was granted in 1726 by King George, giving the 
 representatives assembled in any great or general court the 
 right to adjourn not exceeding two days, and also providing 
 that the election of a Speaker should be subject to the ap- 
 proval of the Governor, to be signified by message in writ- 
 ing to the House of Representatives. The right to negative 
 Councillors had seldom been questioned and time and again 
 when active patriots were chosen their election was nega- 
 tived by the Governor.^ 
 
 Importance of the Province Charter 
 
 The charters granted to Massachusetts and to other 
 colonies are very interesting documents, not only on their 
 own account and as grants of independent legislative power, 
 but because they served as a basis for a future constitution 
 in Massachusetts and in other states. For instance, the pro- 
 vision in the second charter that Councillors were to be 
 elected by the General Court was followed in the Massa- 
 chusetts Constitution. The people elect them now, but even 
 
 ' Bradford, History of Plymouth Plantation, p. 216. 
 * Hutchinson, History of Massachusetts, voL IT, pp. 137, 211, 214, 226, 
 and 241. 
 
EARLY FORMS OF GOVERNMENT 1$ 
 
 today, if a vacancy occurs, the General Court if in session 
 fills the vacancy. The provision that a majority of the 
 Council shall run the government in case of the death or 
 absence of the Governor and Lieutenant-Governor, that the 
 Lieutenant-Governor shall succeed the Governor, and that 
 judges be appointed by the Governor with the consent of the 
 Council, were all copied from the Province Charter. The 
 absolute veto given the Governor under that charter and the 
 requirement of the consent of the Council in granting com- 
 missions for exercising martial law were placed in the draft 
 submitted by John Adams and the committee to the Con- 
 vention of 1780. Neither of these provisions was finally put 
 in the Constitution, but they and other clauses of the charter 
 which the people had become used to and found serviceable 
 were utilized in framing our present form of government. 
 
 The Provincial Governor: His Position 
 
 AND InELTJENCE 
 
 The provincial Governor was a real governor. His powers 
 were vice-regal. He was military head of the government 
 like the king and he could prorogue and dissolve the General 
 Court without being limited by triennial or septennial acts. 
 He could grant charters, like the king, and had the right of 
 pardon. In later years the Assembly learned how to curb 
 these powers. They would hold the Governor in check by 
 granting only a temporary salary, and that often not until 
 he had signed bills which they desired. 
 
 As time went on the members of the Assembly began also 
 to direct military affairs. They appointed committees to 
 visit and investigate the army. In 1722 they summoned the 
 commanding ofl&cer. Colonel Walton, before them to explain 
 why certain orders of the House had not been carried out. 
 Then by refusing to vote him any pay or to provide for 
 
1 6 MASSACHUSETTS GOVERNMENT 
 
 carrying on war they brought about his dismissal. In the 
 same year they forced the Gk»vemor to submit to them his 
 speech to the delegates of the Iroquois tribes. They re- 
 turned it with the proviso that they would agree to it only 
 if delivered in the name of the General Court and in presence 
 of the members of the House. The Governor had to sub- 
 mit.* 
 
 The power of the Governor of appropriation and of pardon 
 was gradually taken over by the Legislature, and his power 
 of censorship was disputed. It is curious to note the decline 
 of the colonial Governor's power and the usurpation of his 
 authority by the Assembly. It is still more curious to find 
 that the exact opposite has resulted under constitutional 
 government. Under the original constitutions of the states 
 the powers of the Assembly were made paramount and 
 numerous checks placed upon the authority of the Governor. 
 Gradually, however, distrust of legislatures has grown until 
 today we find once more, as in colonial times, a tendency to 
 make the Governor supreme and hold him responsible for 
 the govermnent of the state. 
 
 Relations between Governors and the Assembly 
 
 There were constant bickerings between the colonial 
 governors and the Assembly. In spite of the excitement of 
 the times, however, each side seems to have appreciated the 
 position of the other. At least, in their commum'cations 
 they were not constrained from passing on the humor of the 
 situation. In 1770, for instance, there was a dispute be- 
 tween the General Court and the Governor as to the right 
 of the latter to require a sitting in Cambridge or anywhere 
 outside of Boston. Sessions were being held temporarily in 
 
 ' Hutcbinson, op. dt., II, pp. 255-260, 265-266. 
 
EARLY FORMS OF GOVERNMENT 1 7 
 
 the Harvard College chapel. The Assembly adopted an 
 address and sent it to the Governor, pointing out, among 
 other things, the inconvenience of sitting in Cambridge, and 
 the Governor replied: " If you think the benefit which the 
 students receive by attending your debates is not equal to 
 what they may gain in their studies, they may easily be re- 
 strained, and then your sitting in the College will be Uttle 
 or no inconvenience." 
 
 On June 9, 1774, in answer to the speech of General Gage, 
 the newly-appointed Governor, the Council sent this rather 
 pungent reply: " We wish your Excellency every felicity. 
 The greatest of a political nature, both to yourself and the 
 province, is that your administration in the principles and 
 general conduct of it, may be a happy contrast to that of 
 your immediate predecessors." When the chairman of the 
 committee had proceeded thus far with the reading of the 
 reply the Governor stopped him and later sent a message to 
 the Council that he could not receive such an address. 
 
 In the same year, by authority of an Act of Parliament 
 and without any action on the part of the General Court, the 
 King appointed thirty-six Councillors by writ of mandamus. 
 Public indignation was aroused to such a point by this action 
 that most of those appointed declined to serve. The new 
 appointees never sat with the General Court. In Worcester 
 one of these mandamus Councillors had to walk through the 
 ranks of some two thousand patriots, reading his resigna- 
 tion. This Act of ParHament also provided that jurors 
 should be selected by the sheriff instead of by the selectmen. 
 It prohibited town meetings, except for the election of 
 ofi&cers, without express permission from the Governor. 
 
1 8 MASSACHUSETTS GOVERNMENT 
 
 Massachusetts Government During the 
 Revolution 
 
 The last session of the General Court under the Crown 
 government was held at Salem. On the 17th day of June, 
 1774, the Governor directed the secretary to declare the 
 General Court dissolved. The secretary went to the court 
 house and found the door of the Representatives' chamber 
 locked. The messenger who reported his presence at the 
 door returned to him with the information that he had ac- 
 quainted the Speaker with the fact that the secretary had a 
 message from His Excellency, that the Speaker reported the 
 fact to the House, and the orders were to keep the door 
 closed. Soon after this a proclamation dissolving the General 
 Court was published on the stairs leading to the Represen- 
 tatives' chamber in the presence of a group of citizens, some 
 of whom were members of the House. Before dissolving, the 
 General Court elected five delegates to the first Continental 
 Congress. It also made provision for a Provincial Congress 
 with deputies from every town. 
 
 This Provincial Congress organized at Salem on October 7, 
 1774, and after electing John Hancock president imme- 
 diately adjourned to meet at Concord. It met at Concord 
 from October nth to the 14th, then at Cambridge from the 
 17th to the 29th, and again in Cambridge from November 
 23d to December loth, with closed doors, dissolving on 
 December loth. The second Provincial Congress met at 
 Cambridge on the ist of February, 1775, sat there, at Con- 
 cord, and at Watertown, adjourning at the latter place on 
 the 29th of May. The third Provincial Congress met on the 
 31st day of May at Watertown. Joseph Warren was chosen 
 president in the place of Hancock, and on July 19th it 
 dissolved. 
 
EARLY FORMS OF GOVERNMENT 1 9 
 
 The Provincial Congress sat without a Governor. The 
 Council of twenty-eight was continued and sat during the 
 Revolutionary War and until the adoption of the Constitu- 
 tion, taking the place of the chief executive. Thus, with the 
 Provincial Congress, town meetings, a Council, committees 
 of safety, and finally a General Court meeting on July 26, 
 1 775) at the suggestion of the Continental Congress, Massa- 
 chusetts was governed up to the time of the adoption of the 
 constitution. 
 
 Events Leading up to the Adoption of 
 A Constitution 
 
 Massachusetts was the last of the original thirteen states 
 to adopt a constitution; but she was the first state to 
 submit her constitution to a vote of the people. The 
 events leading up to the adoption of a constitution by 
 Massachusetts are of great interest. 
 
 The Council had proceeded to reorganize the courts and 
 to grant commissions, but this temporary makeshift did not 
 work well. Many of the people were oppressed by debts; 
 in places they interfered with the sittings of the inferior 
 courts. There were contentions, too, between the Council 
 and the House. In Berkshire County no state courts were 
 allowed. The towns ran things themselves. Pittsfield, for 
 instance, named five men to sit and hold a local court. The 
 citizens of Lee voted that they held themselves " bound to 
 support the civil authority of this state for the term of one 
 year and bound to obey the laws of this state," and Great 
 Barrington voted " No " on the question " Whether, under 
 the situation of this county, not having a new constitution, 
 and other reasons, the laws of the state are to operate 
 among us." 
 
20 MASSACHUSETTS GOVERNMENT 
 
 Some of the votes passed by town meetings during this 
 critical period are both interesting and significant. For 
 example, the town of Ashfield voted (October 4, 1774), — 
 
 That we will take the law of God for the foundation of the forme 
 of our Government . . . that it is our opinion that we do not want any 
 Govinor but the Govinor of the Universe & under him a States 
 General to consult with wrest of the U. S. for the good of the whole — 
 that the Assembly of this State consist of one Elective body, the mem- 
 bers of which body shall be Annually elected — that all Acts passed by 
 the General Court of the State respecting the several towns be sent to 
 the several towns for their acceptance before they shall be in force . . . 
 that it is our opinion that each town is invested with a native authority 
 to chuse a Committee or Number of Judges consisting of a number of 
 understanding & prudent men that shall jug & determine all cases 
 between man & man, setel Intestate estates, & collect all debts that 
 have been contracted or may be contracted within their Limits & 
 all Controversies whatsoever except in the case of murder & then it 
 will be necessary to call in eleven men from eleven neiboring Towns 
 that shall be cose (chosen ?) for that purpose annually to jug & con- 
 demn such murderers. 
 
 Other towns also took the initiative in proposing a new 
 scheme of state goverrmient. The town of Stoughton, in 
 October, 1776, proposed (a) that county conventions should 
 each draft a form of government for the state, and (&) that 
 a state convention should be made up of these county con- 
 ventions or of delegates selected by them. The town of 
 Bellingham, also proposed an elaborate plan of district con- 
 ventions which should make drafts and report back to the 
 towns, to be followed by a general committee made up of one 
 member from each district. 
 
 Pittsfield likewise began to agitate the matter. There a 
 petition was circulated and the Reverend Thomas Allen 
 declared that all he wanted was a government founded on 
 the consent of the people. This was the same reverend 
 gentleman who was known as "the fighting parson" and 
 who led his congregation to Bemiington and complained to 
 
EABLY FORMS OP GOVERNMENT 21 
 
 Colonel Stark, the night before that celebrated battle, that 
 he had been disappointed on several occasions and did not 
 want to miss a fight this time. Colonel Stark assured him 
 that he would have all the fighting he wanted on the mor- 
 row, and the reverend gentleman presumably did. 
 
 The First Proposal (1778) Rejected 
 
 In view of all this unrest and agitation the House of 
 Representatives, in 1776, appointed a committee to take 
 under consideration the matter of a constitution, and, later, 
 the House resolved to recommend to the towns to vote, 
 first, whether they would empower the House and the 
 Council as a joint body to consult, agree, and enact a con- 
 stitution; and, second, whether it should be published for 
 the inspection and perusal of the inhabitants before the 
 ratification thereof by the Assembly. There were 250 
 towns in the state. Of these only ninety-seven made re- 
 turns; seventy-four of these were in favor of the proposi- 
 tions; twenty-three including Boston, were against. As a 
 result of this, four members of the Council and eight of the 
 House were appointed, and submitted a draft of a constitu- 
 tion. Unfortunately, the journals of the House and Council 
 throw no information on the proceedings. Suffice it to say 
 however, that a form was agreed upon, and, on the 4th of 
 March, 1778, submitted to the people with the provision 
 that the assent of two-thirds of the people should be required 
 for the adoption of the constitution. One hundred and 
 twenty towns neglected to express any opinion. Five-sixths 
 of those expressing an opinion voted in the negative, includ- 
 ing Boston. The constitution was rejected by some 10,000 
 to 2,000, or a vote of five to one. 
 
 There were various reasons for this action. Some thought 
 that a special convention should be called to draw up such 
 
22 MASSACHUSETTS GOVERNMENT 
 
 an important document; others that it was wiser to wait for 
 more tranquil times; some objected that no bill of rights 
 had been inserted; others that there was not a proper sep- 
 aration of the executive and the legislative functions.' 
 Many of the ablest men, too, were away from the state, 
 attending the Continental Congress. 
 
 Continuance of the Agitation 
 
 On the rejection of this constitution the agitation through- 
 out the colony started anew. There was almost open rebel- 
 hon, the illegal nature of the existing government being 
 given as a reason. Some of the officers were still royalists 
 and this intensified the feeling against the courts. The 
 Reverend Mr. Allen of Pittsfield was a leader. A petition 
 to the General Court was drawn up, in which objections 
 were made to the debtors' law and the assumption of power 
 by the General Court. The locahties wanted to elect their 
 own judges. Courts were repeatedly prevented from sitting. 
 The towns to a great extent ran things themselves. The 
 towns in several cases (Pittsfield, Lenox and Hancock), 
 voted that they were not boimd to obey state laws. Threats 
 of separation were made. The state government was practi- 
 cally suspended. In Berkshire they petitioned for a con- 
 stitutional convention, suggesting that " if this honorable 
 court are for dismembering, there are other states which 
 
 1 " We see also something of the political character of a Hill Town in the 
 suggestions which Warwick makes to its representative. They desire that the 
 Legislature shall consist of one chamber (one of the coast towns was about 
 the same time instructing its members to make sure that there were two 
 chambers) that each town shall have one member, towns of the largest class 
 not more than 4 or 5, the rest in proportion, that suffrage shall be universal, 
 that a town shall have the right to recall its member at any time on evidence 
 of misconduct, and tlmt at no time shall less than 80 members constitute a 
 house." Jameson, Introduction to the History of the States, p. 25. 
 
EARLY FORMS OF CX)VERNMENT 23 
 
 have constitutions which will, we doubt not, as bad as we are, 
 gladly receive us." Its representatives were instructed to 
 denaand a new constitution. The final adoption of the con- 
 stitution may have prevented Berkshire from today being 
 part of the State of New York. At any rate, the Berkshire 
 constitutionalists helped materially to give us a constitution 
 in Massachusetts. 
 
 The sea towns in Essex County took a lively interest in 
 political affairs. Here the proposed constitution of 1778 was 
 rejected. At Newburyport the town voted that the select- 
 men write circular letters to the towns in the county suggest- 
 ing a convention of delegates to consider the proposed 
 constitution. As a result, some of the most prominent 
 citizens assembled at Treadwell's Tavern in Ipswich. Here 
 a minute and critical examination of the clauses of the pro- 
 posed constitution was instituted. The various objections 
 made to the constitution and suggestions of what such a 
 document should contain were drawn up by Theophilus 
 Parsons and printed at Newburyport in the form of a pam- 
 phlet. It was entitled " The Result of the Ipswich Conven- 
 tion." This pamphlet not only had much influence upon the 
 decision of the towns in rejecting the constitution proposed 
 at that time, but also, by its suggestions, was of great assist- 
 ance in drafting the constitution finally adopted. 
 
 Before taking up that constitution it will be interesting to 
 note some of the provisions of the rejected one. Of course I 
 shall cite only some of its most striking clauses. 
 
 Under it, the Governor and Lieutenant-Governor were 
 to be members of the Senate, the Governor being President 
 of this body. The Senate was to consist of twenty-eight 
 members, exclusive of the Governor and Lieutenant-Gover- 
 nor. Vacancies in the Senate were to be filled by the House, 
 which was to be made up of representatives from the towns. 
 
24 MASSACHUSETTS GOVERNMENT 
 
 In case of the death or absence of both the Governor and 
 Lieutenant-Governor, the Senate was to succeed to their 
 powers. In matters requiring the action of the Governor 
 and Senate no veto was given the Governor. The power of 
 pardon was placed with the Governor, Lieutenant-Gover- 
 nor and Speaker. Only Protestants could be Governor, 
 Lieutenant-Governor, Senator, Representative or Judge. 
 
 Curiously enough, none of these special provisions were 
 inserted in the constitution adopted two years later, but a 
 great deal of the work bestowed on the document proved 
 valuable to the framers of the next one. 
 
CHAPTER II 
 
 THE CONSTITUTION OF MASSACHUSETTS 
 
 On the 19th of February, 1779, the Legislature adopted a 
 resolution providing for a vote of the people on two ques- 
 tions: (i) " Whether the people would choose at this time 
 to have any new form of govermnent at all " ; (2) " Whether 
 in case they did they would empower their representatives 
 to siunmon an assembly for the sole purpose of preparing 
 such a form." 
 
 Though nearly half of the towns neglected to answer these 
 questions, a majority of the rest responded in the affirma- 
 tive. An election of delegates was accordingly held, and on 
 September first they assembled at Cambridge. The meet- 
 ing-place was the old church which stood near the site now 
 occupied by Dane Hall. James Bowdoin was chosen Presi- 
 dent of the Convention. It was voted to have a bill of 
 rights; that the government to be framed by the Convention 
 should be a free republic, and that " it is of the essence of a 
 free republic that the people be governed by fixed laws of 
 their own making." A grand committee of thirty was 
 appointed to draft a constitution. 
 
 The Work of John Adams 
 
 The Convention then adjourned to October 28. The 
 grand committee met and appointed James Bowdoin, 
 Samuel Adams, and John Adams a sub-committee of three. 
 This sub-committee delegated the preparation of the draft 
 to John Adams. Mr. Adams performed the task allotted to 
 him. He had given these matters great thought and made 
 
 25 
 
26 MASSACHUSETTS GOVERNMENT 
 
 suggestions at the request of other colonies in relation to 
 drawing up their constitutions. He had even submitted 
 plans for them. He was undoubtedly the man best fitted for 
 ] /the work. In a letter he says: " There never was an ex- 
 \ { ample of such precautions as are taken by these wise and 
 ' jealous people in the formation of their government. None 
 was ever made so perfectly upon the principle of the people's 
 rights and equahty. It is Locke, Sidney, and Rousseau and 
 DeMably reduced to practice, in the first instance. I wish 
 every step of their progress printed and preserved."' In a 
 letter to Mr. Jennings dated June 7, 1780, he says: " I was 
 chosen by my native town into the Convention two or three 
 days after my arrival. I was by the Convention put upon the 
 committee; by the committee upon the sub-committee; so 
 that I had the honor to be principal engineer. The com- 
 mittee made some alterations, as, I am informed, the Con- 
 vention have made a few others in the report; but the frame 
 and essence and substance is preserved." ^ 
 
 The task of drafting the luULi^ rights was left by the 
 general committee to Mr. Adams aione.'^This was reported 
 by him to the Convention with the exception of the third 
 article which he seems to have thought could be better 
 drawn up by some of the clergy. 
 
 On October 28th, the Convention re-assembled, and on 
 November nth it adjourned to meet in Boston on the 
 5th of January, 1780. 
 
 Some changes were made by the Convention in the draft 
 submitted to them. For instance, Mr. Adams' draft pro- 
 vided for an absolute veto by the Governor without any 
 provision for the Legislature to over-ride it. This was 
 drastic, especially as in some of the states the Governor was 
 
 ' C. F. Adams, Life and Works of John Adams, vol. iv, p. 216 
 " Ibid. 
 
CONSTITUTION OF MASSACHUSETTS 27 
 
 given no veto at all. Mr. Adams provided that no man 
 should be eligible as Governor more than five years in any 
 seven. He did not give to the House of Representatives the 
 privilege of asking opinions from the Supreme Court, but 
 restricted that right to the Governor and Council and to the 
 Senate. He provided that the Senate, and not the Governor 
 and Council, should hear causes of marriage, divorce and 
 alimony " until the Legislature shall by law make other 
 provision." All officers of the militia were to be appointed 
 by the Governor with the advice and consent of the Council. 
 This, too, was changed by the Convention, thus making, 
 according to Mr. Adams, the second material change in his 
 draft, that concerning the absolute veto of the Governor 
 being the first.^ 
 
 The New Constitution Submitted and Accepted 
 
 On the 2d of March, 1780, the Constitution ^ was finally 
 agreed to and submitted to the people, together with an 
 address defending and explaining the document. The Con- 
 vention then adjourned, to meet on the 7th of June, at the 
 Brattle Street Church in Boston, where the votes for and 
 against the adoption of the Constitution were to be counted. 
 A two-thirds vote was required for adoption, and it having 
 been ascertained that the requisite number of votes had 
 been obtained, a resolve was adopted for carr5dng the Con- 
 stitution into effect and the Convention dissolved on the 
 i6th of June. 
 
 The first General Court under the new frame of govern- 
 ment met at the State House in Boston on the 25th of 
 October of the same year. It consisted of two hundred mem- 
 
 1 Life and Works of John Adams, pp. 231, n. i; 249, n. i. 
 
 2 A copy of this document, as finally agreed upon, may be found in the 
 Manual for the General Court, published annually by the Commonwealth. 
 
28 MASSACHUSETTS GOVERNMENT 
 
 bers. The condition of the country was still unsettled and 
 serious opposition tended to frustrate the proper workings 
 of the government. Criticisms were made of the aristo- 
 cratic character of the Senate, of the independent Executive, 
 and his salary, of the courts, until finally in 1786 an armed 
 revolt known as Shays's Rebellion broke out, threatening 
 the very existence of the new government. This uprising 
 was suppressed, however, and as time went on and the 
 workings of the government under this Constitution were 
 found to be practical and efficient, acquiescence in the 
 scheme and belief in its broad provisions became stronger 
 and stronger. Less turbulent and more prosperous times 
 were in sight and from condemnation and criticism almost 
 imiversal praise arose for the system of government. 
 
 The Constitution of 1780 still in Force 
 
 Forty-four amendments have been made to the Massa- 
 chusetts Constitution and two Constitutional Conventions 
 have been held since the one we have been discussing, yet 
 the Constitution of 1780 is still in force. The original Con- 
 stitution in practically all the states of the Union has been 
 superseded by at least one, and in most cases by several new 
 documents, each one growing longer and laying down pro- 
 visions relating to an infinite number of subjects. Massa- 
 chusetts alone is hving under her original Constitution. 
 This has been possible because of the provisions for amend- 
 ment and because of the liberal enactments in the original 
 docmnent. It is not because Massachusetts is behind the 
 times, but because the originators of her constitution were 
 far-seeing enough to draw up a liberal and flexible document. 
 The length of time it has lasted and the satisfaction it has 
 given, the great industries that have grown up under it, the 
 prosperity and happiness of the people, the advancement of 
 
CONSTITUTION OF MASSACHUSETTS 29 
 
 science and education, — all stand as bright tributes to the 
 master minds that originated the Constitution and carried 
 it to successful adoption one hundred and thirty-five 
 years ago. 
 
 Some of its Distinctive Features 
 
 It would be impossible in this short treatise to explain 
 everything contained in this Constitution. On some of the 
 phases which differentiate it from the constitutions of other 
 states and which seem to me of particular importance, how- 
 ever, I wish to touch. 
 
 In many of the original constitutions of the various 
 states the judges and state of&cers, with the exception of the 
 Governor, were elected by the Legislature. Even today in 
 some of them we find provisions for electing various state 
 of&cers by the Legislature instead of directly by the people. 
 Under the Massachusetts Constitution of 1780, it was pro- 
 vided that the Secretary, Treasurer and Receiver-General, 
 the Commissary-General and Notaries Public should be 
 chosen annually by joint ballot of the Senators and Repre- 
 sentatives, and this method of election of state oflScers pre- 
 vailed up to 1855 when it was changed by amendment so 
 that they should be chosen directly by the people. The 
 o£&ce of notary ceased to be elective in 1820, Article 4 of 
 the Amendments providing that notaries should be ap- 
 pointed by the Governor as were other judicial officers, 
 except that their term should be for seven years and not 
 for life. In New Jersey, Maryland, Virginia, North and 
 South Carolina, Pennsylvania, and Delaware, under the 
 original constitutions the chief executive was elected on 
 joint ballot by the two houses of the Legislature. 
 
 The Virginia plan for a Constitution of the United States, 
 moreover, provided that the executive branch of the govern- 
 
30 MASSACHUSETTS GOVERNMENT 
 
 ment should be placed in the hands of a single man to be 
 chosen by the Legislature. This Governor or President was 
 to hold office for a short term and to be ineligible for re- 
 election. The judges of the Supreme Court, also, were to be 
 chosen by the Legislature. These ideas did not find favor 
 in Massachusetts. Yearly sessions of the Legislature were 
 provided for and though there have been attempts to have 
 bieimial sessions Massachusetts continues to be one of the 
 six States of the Union whose Legislature meets annually. 
 It is the only State that has both armual sessions and annual 
 elections of its state officers. There are only three other 
 States in the Union which have a Governor's Council.' 
 There are a number of States that have no Lieutenant- 
 Governor, and in States where they do have one, there being 
 no Council he is apt to preside over the Senate as the Vice- 
 President does in Washington. The power of appointment, 
 too, in most States is subject to ratification by the Senate, 
 and not, as in Massachusetts, by the Council. Either 
 branch of the Legislature or the Governor and Council may 
 require the opinions of the justices of the Supreme Court on 
 important questions of law and on solemn occasions.^ This 
 is an unusual privilege, and according to Mr. Stimson it is 
 allowed only in six other States and in two of those it is 
 limited either to important questions of law or to those con- 
 cerning the State Constitution.* Many of the far-seeing 
 and liberal provisions contained in the Constitution I shall 
 take up later, but two more I shall refer to now. 
 
 ' These are Maine, New Hampshire and North Carolina. 
 
 2 See below, Chap. IV. 
 
 ' Stimson, Federal and State Constitutions of the United States, %6$2, n. 6. 
 
CONSTITUTION OF MASSACHUSETTS 3 1 
 
 Some Special Provisions of the Constitution 
 (i) Limitation of Martial Law 
 
 Within the last two years we have read of committees 
 from Washington visiting the State of West Virginia to in- 
 vestigate a strike of coal miners which was in progress there. 
 Martial law had been declared, and the Supreme Court of 
 Appeals of that State, with one judge dissenting, held 
 that martial law could be declared by the Governor, and 
 that the question as to necessity lay with him, that a mili- 
 tary court could properly try men for offenses committed, 
 though it was shown that some civil courts were open in 
 other parts of the same county before which the men 
 might have bfeen taken for trial.^ Such action as this 
 revolutionizes the generally accepted doctrine as to mar- 
 tial law in this country, and it would certainly surprise 
 and outrage people in Massachusetts if the Governor could 
 in his own discretion declare martial law and supersede 
 the civil courts and government by military tribunals. 
 The founders of that state goverjoment, however, were 
 cognizant of the possibilities of abuse through martial law 
 and the suspension of the writ of habeas corpus; conse- 
 quently they provided in her bill of rights that " no person 
 can in any case be subject 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." ^ 
 
 This provision is far broader than one merely restricting 
 the power to call out the militia of the State. There is a 
 radical difference between calling out the militia to suppress 
 a txmiult or riot and the application of martial law to the 
 
 1 71 W. Va., 519. 
 
 2 Massachusetts Constitution, Part I, Art. XXVIII. 
 
32 MASSACHUSETTS GOVERNMENT 
 
 civil population. In Massachusetts the laws give the power 
 of calling out the militia in cases of riot not only to the 
 Governor but to mayors, sheriffs and the selectmen of towns 
 as well.^ Martial law can be applied to civilians in Massa- 
 chusetts only by vote of the Legislature, and this restriction 
 is found in the constitutions of only two other States, namely 
 New Hampshire and South Carolina.^ It is, nevertheless, a 
 safeguard that all the States might well adopt. A power left 
 to the discretion of two representative bodies of the people is 
 much less apt to be abused than one dependent upon the 
 decision of a single man. 
 
 In the last chapter of the Constitution it was further pro- 
 vided that the writ of habeas corpus shall only be suspended 
 by the Legislature upon the most urgent and pressing occa- 
 sions, and for a time not exceeding twelve months.' 
 
 (2) The Removal of Jxjdges by Address 
 
 Under the Massachusetts Constitution judges are ap- 
 pointed for hfe. Great stress was laid by Mr. Adams in the 
 Convention, on the importance of this method of tenure for 
 judges and it was finally adopted. While all the state 
 oflScers, including judges, can be removed under the Con- 
 stitution by impeachment, there is a particular provision, 
 and a very interesting one, providing that judges can be 
 removed by the Governor on address of the two Houses 
 of the Legislature with the consent of the Council. This 
 broad power of removal by address although long existent 
 in England is so unusual in this country and so important 
 that it requires a detailed explanation. 
 
 • Revised Laws of Massachusetts, Chap. 16, § 121. See also, 5 Gray 
 {Mass.), 121. 
 
 ^ Stimson, op. cit., § 293, n. 4. 
 
 ' ConstUution of Massachusetts, Chap, vi, Art. vii. 
 
CONSTITUTION OF MASSACHUSETTS 33 
 
 When Colonel Roosevelt said in his famous speech before 
 the Ohio Constitutional Convention at Colimibus, speaking 
 of the recall of judges, that he favored such a drastic method 
 of removal of judges as was embodied in the Massachusetts 
 Constitution, many people opened their eyes with amaze- 
 ment. Few, of course, had heard of removal by address, 
 and fewer still, if they had heard of it, understood what was 
 meant. This is quite natural as no case of removal by ad- 
 dress has taken place in Massachusetts since 1882. 
 
 Constitutions are generally supposed to be dull things and 
 few people, I fear, read them even in these times when it is 
 so. common to attack their provisions. The fact remains, 
 however, that in the old Bay State there exists a most effec- 
 tive and unusually hberal system for the speedy removal of 
 judges. 
 
 Among the States of the Union that provide for removal 
 by address, the greater number stipulate that a two-thirds 
 vote of both the House and the Senate is necessary in order 
 to remove the judge; in Massachusetts a bare majority vote 
 of each House is sufl&cient. In most States the cause of the 
 proposed removal of a judge must be stated; notice must 
 also be served on the accused, and a hearing given; but 
 under the requirements of the Massachusetts Constitution 
 no reason need be assigned and no hearing is necessary. 
 
 Daniel Webster, speaking of this subject before the Con- 
 vention of 1820, assumed that removal could take place 
 without trial or accusation. He said, " If the judges, in 
 fact, hold their office only so long as the Legislature sees 
 fit, then it is vain and illusory to say that the judges are 
 independent men incapable of being influenced by hope or 
 by fear; but the tenure of their office is not independent. 
 The general theory and principle of the Government is 
 broken in upon by giving the Legislature this power. The 
 
34 MASSACHUSETTS GOVERNMENT 
 
 departments of Government are not equal, co-ordinate and 
 independent while one is thus at the mercy of the others. 
 What would be said of a proposition to authorize the Gover- 
 nor or Judges to remove a Senator or member of the House 
 of Representatives from office ? " And Lemuel Shaw, 
 afterwards Chief Justice of Massachusetts, said in address- 
 ing the Convention: " By the Constitution as it stands, the 
 judges hold their offices at the will of the majority of the 
 Legislature." 
 
 How Tms Provision Has Worked . 
 
 There has been much dispute as to whether this clause for 
 removal of judges by address in the Constitution of Massa- 
 chusetts extended any further than to cover removal for 
 incapacity. It was because of incapacity that Judge Brad- 
 bury was removed by address in 1803. He had become 
 enfeebled by old age and imfit to do his work. 
 
 Let us glance at some of the cases which have arisen in 
 Massachusetts. There have been a number of them. Be- 
 sides Mr. Justice Bradbury, two judges of the Court of 
 Common Pleas were removed by address in 1803 for extor- 
 tion in office and two justices of the peace in 1876. The 
 most famous cases, however, are those of Mr. Loring, Judge 
 of the Probate Court for the County of Suffolk, and of Mr. 
 Day, Judge of the Probate Court of the County of Barn- 
 stable. In both these latter cases hearings were given. 
 This was the general custom. The course of procedure 
 followed the usual method governing legislation. A petition 
 was introduced in both cases for the removal of these judges. 
 The petition was referred to a joint committee, — in the 
 Loring case to the Committee on Federal Relations, and in 
 the Day case to a special committee. These committees 
 then sat and heard the evidence for and against removal. 
 
CONSTITUTION OF MASSACHUSETTS 35 
 
 and also the arguments of counsel, after which in due course 
 they reported to the House or Senate. This report, of course, 
 had to be acted upon by both bodies. If the committee 
 favored removal they said so at the end of the report, then 
 they further recommended that a joint committee, consist- 
 ing of two on the part of the Senate and five on the part of 
 the House be appointed to present the address to the Gover- 
 nor. Full reasons for the removal were given in the report 
 of the Committees, and if there were dissenters they were 
 allowed to file a report of their own. When the House and 
 the Senate adopted the report the address was taken by 
 this special Committee to the Governor. In the case of 
 Judge Loring, the address read as foUows: "The two 
 branches of the Legislature in General Court assembled, 
 respectfully request that your Excellency would be pleased 
 by and with the advice and consent of the Council, to re- 
 move Edward Greely Loring from the ofl&ce of Judge of the 
 Probate Court for the County of Suffolk." 
 
 When the address reaches the Governor it consists merely 
 of a request for the removal of the judge, and does not 
 state any reasons as does the report of the Legislative Com- 
 mittee. The Governor after the receipt of the address 
 presents the question of removal to the Council, and if the 
 Council and the Governor favor removal the latter issues a 
 writ of removal, sending a message to the Legislature in- 
 forming them of the fact that removal has taken place. 
 
 In both of these cases the first attempt at removal was 
 unsuccessful. Judge Loring was not only Judge of Probate, 
 but also held a commission from the Federal Government 
 as United States Commissioner. In the latter capacity he 
 signed a warrant for the rendition of the negro fugitive, 
 Anthony Bums. This act created a furore. The Legisla- 
 ture was appealed to by Judge Loring's opponents. Long 
 
36 MASSACHUSETTS GOVERNMENT 
 
 hearings were held at which distinguished counsel repre- 
 sented both sides, and in the end the two Houses voted an 
 address to the Governor and Council. Governor Gardner, 
 however, sent a message back to the Legislature refusing to 
 remove Judge Loring. This was in 1855. During the re- 
 mainder of that year and during 1856 no further address was 
 sent to the Governor. But in 1857, although an adverse 
 report was made by the committee on federal relations with 
 one dissenter on the petitions for the removal by address of 
 Judge Loring,* this report was substituted in the Senate by 
 a vote of twenty to fifteen and then the address with amend- 
 ments was adopted by a vote of twenty-five to twelve.'' The 
 House, on the 20th of May, adopted the address by a vote of 
 two hundred and ten to sixty-nine.' A joint committee was 
 duly appointed to dehver the address. They reported back 
 that its members had performed their duty. The Governor 
 sent an answer, which was a very brief one as the House was 
 about to adjourn, refusing to remove Judge Loring, but 
 later sent an elaborate message giving full reasons for his 
 refusal to comply with the address.* 
 
 In this second address to Governor Gardner reasons were 
 given for asking for the removal of Judge Loring, as follow: 
 
 1. Because he consented to sit as United States Slave Commis- 
 sioner in defiance of the moral sentiment of Massachusetts as 
 expressed in the Legislative Resolves of 1850. 
 
 2. Because, now, in defiance of the provisions contained in sec- 
 tion 13 of Chapter 489 of the Acts of 1855, Edward G. Loring 
 continues to hold the office of judge of probate, under a Massa- 
 chusetts commission, and at the same time to hold in defiance 
 of law a commission under the United States, which qualifies 
 him to issue warrants and grant certificates, under the Act 
 of Congress named in the 9th section of Chapter 489 of the 
 Acts of 1855. 
 
 ' Senate Journal, 1857, p. 513. * Ibid., pp. 610-612. 
 
 ' Hoitse Journal, 1857, p. 716. 
 
 * Massachusetts Acts and Resolves, Special Messages, 1856-57. 
 
CONSTITUTION OF MASSACHUSETTS 37 
 
 In 1858 Governor Banks took office, and the Legislature 
 after extended hearings sent an address to him requesting 
 the removal of Judge Loring as Judge of Probate. Governor 
 Banks acceded to the request and removed the Judge, on 
 the ground that an act had been passed by the Legislature 
 making it illegal for one man to occupy the two offices. 
 
 No reasons were assigned in the first or last of these three 
 addresses; but in their messages both Governor Gardner 
 and Governor Banks gave their reasons, — in one for not 
 removing, and in the other for removing the Judge.* 
 
 In the other case, that of Mr. Justice Day, several hear- 
 ings were held and all the accusations against him were 
 thoroughly investigated. In 1881 when the case came up 
 for the first time, the committee reported against removing 
 him and their report was sustained by the Legislature. In 
 1882, however, the committee reported in favor of removal; 
 both Houses voted for it, and the Governor removed Judge 
 Day accordingly. No reasons were given by the Legislature 
 in its address to the Governor and none were given by the 
 latter in acceding to the request for removal.^ Even as late 
 as this case, a petition was signed by leading members of the 
 bar, asking that the opinion of the Supreme Court be re- 
 quested as to the right of removal by address for any cause 
 except mental or physical incapacity. This suggestion, 
 however, was not acted upon. 
 
 Whatever the intention of the f ramers of the Constitutipn 
 may have been, there seems no doubt from the language 
 used, which is without limitation, that the right of removal 
 by address is quite unrestricted. This particular clause, 
 however, like many others, was taken from the British sys- 
 
 1 House Document, No. 302, 1855; House Document, No. 107, 1858; 
 Senate Document, No. 84, 1858. 
 
 2 Senate Document, No. 200, 1S81, and Senate Document, No. 150, 1882. 
 
38 MASSACHUSETTS GOVERNMENT 
 
 tern of government, where, instead of the original power of 
 the King to remove judges, the Act of Settlement at the time 
 of William and Mary provided that they could be removed 
 by the King on address made to him by Parhament. No 
 hearing was provided for and no restriction was placed on 
 the cause of removal. The power of the King arbitrarily 
 and alone to remove judges was taken from him, — that was 
 aU. As in Great Britain a hearing has been usual on peti- 
 tions for removal by address so in Massachusetts the justice 
 of the people and their demand for fair play will ever avail 
 to secure the accused a hearing. Few cases have arisen in 
 either jurisdiction. Where a serious offense is charged, im- 
 peachment is the natural method of procedure. But so far 
 as precedent goes, a hearing is customary, and any cause 
 may be alleged (not alone disabihty) to justify removal by 
 address. 
 
 The Right of Removal by Address and the 
 Recall of Judges 
 
 Because the judges in Massachusetts have so seldom 
 abused their power; because the people feel that they are 
 men of uprightness and great learning; because they know 
 that only through stability and security of tenure of office, 
 regardless of fear, of poUtical cliques and parties, can justice 
 be maintained; because of the liberal method of removing 
 judges provided in its Constitution, there has not been, nor 
 do I think there is today, any popular demand either for the 
 recall of judges or of judicial decisions in that Common- 
 wealth. Strange to say, it has been in States where judges 
 are elected that the complaints against their decisions have 
 arisen. There have been too many examples of the vicious- 
 ness of this pohcy of having judges dependent for their 
 positions on the bidding of poUtical chiefs to warrant taking 
 
CONSTITUTION OF MASSACHUSETTS 39 
 
 the risk of extending the system. The solution would seem 
 to lie in such liberal provisions as exist in the Constitution 
 of Massachusetts. 
 
 The recall of judges is not a new idea. It was suggested 
 and even vigorously applied in this country even before the 
 adoption of the United States Constitution. In the years 
 between the Revolution and the adoption of this Constitu- 
 tion, each State issued paper money. " The paper currency 
 showed an immediate tendency to drop to two cents or 
 thereabouts on the dollar. Mutton chops could sometimes 
 be obtained for $4 apiece and a good wearable hat for $40; 
 but more usually a prudent shopkeeper preferred to lose his 
 customer than handle such precarious stuff. Clearly some- 
 thing was wrong and the people taking thought discovered 
 that it was the shopkeepers who needed coercion. Laws 
 accordingly were passed with this object, and when they 
 were defied, the matter came before the Courts. The 
 Judges sitting amid the noisy demonstration of popular 
 anger, decided nevertheless that the laws were invalid and 
 absolved the defendants. Up to this time there had been if 
 not unanimity at any rate a huge majority supporting the 
 panacea ; but now there was a division. One party grumbled 
 but owned itself defeated; the other with a stern logic dis- 
 covered that to complete the system the judges must be 
 done away with or intimidated. In Rhode Island they were 
 accordingly dismissed, and elsewhere there was dangerous 
 rioting. In Massachusetts there was civil war." ^ 
 
 > F. S. Oliver, Life of Alexander Hamilton, p. 136. 
 
CHAPTER III 
 THE CONSTITUTIONAL CONVENTION OF 1820 
 
 There have been two Constitutional Conventions in Massa- 
 chusetts since the adoption of the state Constitution in 1780. 
 One was held in 1820; the other in 1853. ^ ^^^o the 
 separation of Maine from Massachusetts, the excessive 
 number of members in the House of Representatives, the 
 existing system of apportionment of Senators, and objec- 
 tions to the third article of the Bill of Rights, made it seem 
 desirable to amend the Constitution. The Legislature 
 accordingly submitted to the people the question of calling 
 a convention for this purpose and the people voted in favor 
 of such a step. This first convention (1820) sat fifty-five 
 days, Sundays included, and the second (1853) sat three 
 months. 
 
 The Constitution as adopted in 1780 required a two-thirds 
 vote of the people for its adoption. So did the proposed 
 Constitution of 1778, which was rejected, as it failed to 
 receive a two-thirds vote. The Constitution of 1780 also 
 provided for amendment by the people in the year 1795, if 
 they so decreed by a two-thirds vote. They did not so 
 decree and consequently no delegates were elected to meet 
 in convention for that purpose. It is interesting to note, 
 however, that neither the convention of 1820 nor that of 
 1853 provided for a two-thirds vote to adopt the proposals 
 put forward by them. 
 
 Personnel and Work of the Convention 
 
 The Convention of 1820 met at the State House in Boston 
 on the 15 th of November. Many men of great distinction 
 
CONSTITUTIONAL CONVENTION OF 1820 4 1 
 
 sat in it. The names of Webster, Shaw, Adams, Morton, 
 Pickman and Story, for example, appear prominently on its 
 records. 
 
 Fourteen amendments were adopted and submitted to 
 the people. Five of these were rejected and the other nine 
 form the first nine amendments to the Constitution of 
 Massachusetts. 
 
 The Rejected Amendments 
 
 The first article was rejected. It provided that the power 
 and duty of the Legislature to make provision for public 
 worship and the support of public teachers of religion should 
 not be confined to incorporated societies or to Protestant 
 teachers but should extend to all public Christian teachers 
 of piety, religion and morality; that the clause in the third 
 article of the Declaration of Rights which invests the Legis- 
 lature with power to require compulsory church attendance 
 be annulled, and that no person should be tried for a crime or 
 offense involving imprisonment or ignominious punishment 
 except on indictment by a grand jury unless provided other- 
 wise expressly by statute and every one was to be entitled to 
 a hearing in his own defense by himself and counsel. The 
 latter was hardly germane to the first two subjects dealt 
 with. The people rejected this article by a majority of over 
 8,000. Twelve years later, in 1833, however, the important 
 part of the provision relating to public worship was put 
 before the voters in better form, and adopted as an amend- 
 ment to the Constitution. 1 
 
 Article 2 was also rejected. It provided for a change of 
 the political year from May to January, and of the election 
 day from May to November. This was defeated by a little 
 over 2,500 votes. 
 
 1 Constitution of Mass., Article of Amendment XI. 
 
42 MASSACHUSETTS GOVERNMENT 
 
 Article 5 provided for the election of thirty-six Senators 
 instead of forty, for a Council of seven, elected by joint 
 baUot from the people at large (excluding members of 
 the House and Senate), for a new apportionment of the 
 House of Representatives, still keeping it altogether too 
 large, however, as the convention did not want to take away 
 representation from the small towns, and for paying Rep- 
 resentatives from the treasury of the Commonwealth in- 
 stead of from that of the towns. This article was rejected 
 by a majority of over 10,800. 
 
 The political year was changed eleven years later, from the 
 last Wednesday of May to the first Wednesday of January, 
 and in 1855 another amendment made the first Tuesday 
 after the first Monday in November election day.' In 
 the same way the provisions relating to the election 
 of members of the Senate, the Council and the House of 
 Representatives were changed by individual amendments. 
 It was so difficult to arrive, however, at any satisfac- 
 tory basis of representation in the House, that it took 
 three more amendments, one in the year 1836,^ another 
 in 1840,' and a final one in 1857,^ to reach the present 
 basis, — a House of two hundred and forty members dis- 
 tributed in districts according to the number of voters. 
 An amendment was adopted in 1840 providing for a 
 Senate of forty from the then existing senatorial districts, 
 the Governor and Council to assign the number of Sen- 
 ators from each district according to the number of inhab- 
 itants in the district.* In 1857 a final amendment was 
 passed providing for the election of forty Senators from 
 as many districts, each district to contain as nearly as may 
 
 • Constitution of Massachusetts, Articles of Amendment X and XV. 
 2 Ibid., XII. ■> Ibid., XXI. 
 
 ' Ibid., Xni. 6 2bid., XIII. 
 
CONSTITUTIONAL CONVENTION OF 1820 43 
 
 be an equal number of voters.' Time, too, was required 
 to arrive at the present basis of election to the Governor's 
 Council. A change was made in 1840 whereby nine 
 Councillors were to be chosen from the people at large 
 by joint ballot of the Senators and Representatives.^ This 
 system was again changed by the passage of another amend- 
 ment in 1855 providing for election by the people of eight 
 Councillors, one from each district.' This is the method 
 now in vogue. 
 
 The clause looking to the payment of Representatives out 
 of the treasury of the Conamonwealth was not renewed by 
 constitutional amendment. In 1893 an amendment was 
 adopted annuUing the provision in the Constitution that 
 the expenses of legislators going to and returning from 
 the General Court should be paid once and no more out 
 of the treasury of the Commonwealth.^ But long before 
 this a statute had been passed providing that travelling 
 expenses as well as pay of members should come out of the 
 pubhc treasury * and there seems to have been no legal 
 reason for having a constitutional amendment on the sub- 
 ject at any time.* It was apparently inserted in 1820 as a 
 sop to the small towns for having their representation cut 
 down.'' 
 
 There were two other articles submitted by the conven- 
 tion of 1820 which were rejected by the people. One of 
 them, the ninth, provided for the removal of justices of the 
 peace by address,* restricted the removal of any judicial 
 
 1 Constitution of Massachusetts, Article of Amendment XXII. 
 
 2 Ihid., XIII. ' lUd., XVI. " Ibid., XXXV. 
 
 ' In 1858. See Revised Laws, Chap. 3, § 8; Acts igii. Chap. 676. 
 ' I Opinions of the Attorney-General, p. 42. 
 ' Journal of the Constitutional Convention, 1820, pp. 514-518. 
 * There was some doubt as to whether this power already existed. Ibid., 
 p. 490. 
 
44 MASSACHUSETTS GOVERNMENT 
 
 ofl&cer by address until the causes of removal were first 
 stated by entry on the Journal of the House in which it 
 originated, and a copy served on the accused so that he 
 might be admitted to a hearing in his defense, and took 
 away from the Governor and Council and the two branches 
 of the Legislature the right to require opinions from the 
 Judges of the Supreme Court. 
 
 To the first part of this article there could have been no 
 particular objection. In fact, a much easier method of 
 removing justices of the peace was adopted by amendment 
 to the Constitution in 1907, when it was provided that the 
 Governor with the consent of the Council, might himself 
 remove justices of the peace and notaries public.^ The 
 second part requiring a hearing before removal of a judge 
 by address must also have seemed fair. The whole article 
 was probably rendered abortive by the addition of the last 
 paragraph abolishing the right to ask opinions of the 
 Supreme Court. 
 
 Joseph Story of Salem was chairman of the Committee on 
 the Judiciary in the Convention. In their original report the 
 committee suggested that removal by address be subject not 
 to a majority but to a two-thirds vote of the menibers pres- 
 ent in each branch of the Legislature. The Committee's 
 report favoring a two-thirds majority for removal was 
 beaten in the Convention by a vote of two hundred and ten 
 to one hundred and five, and the next day a motion was made 
 by Daniel Webster ^ wording the amendment as it was 
 finally submitted to the people, but even in that form it 
 was voted down with the rest of the article by a majority 
 of over 2,000. 
 
 • Constitution of Massachusetts, Article of Amendment XXXVII. 
 ' Journal of the Convention, 1820, p. 489. 
 
CONSTITUTIONAL CONVENTION OF 1820 45 
 
 The statement issued by the Convention to the people in 
 relation to the last clause of this article is interesting. It 
 shows the reasons for its insertion. " No opinion," they 
 say, " ought to be formed and expressed by any judicial 
 officer affecting the interest of any citizen but upon a full 
 hearing according to law . . . each department ought to 
 act on its own responsibility . . . judges may be called on 
 to give opinions on subjects which may afterward be drawn 
 into judicial examination before them by contending 
 parties," and "if the question proposed should be of a pub- 
 Uc nature it will be likely to partake of a political charac- 
 ter; and it highly concerns the people that judicial officers 
 should not be involved in political or party discussions." ^ 
 
 The other article rejected by the people related to Har- 
 vard College. It was numbered Article 10, and provided 
 that the Board of Overseers, in the election of ministers to 
 the Board, should not be restricted to ministers of churches 
 of any particular denomination of Christians.^ This article, 
 strange to say, was negatived by a vote of over 12,000. 
 The subject matter was subsequently dealt with by an Act 
 of the Legislature.' 
 
 The Accepted Amendments 
 
 This convention was of great importance both in the 
 notable and able discussions that took place, preserving 
 for us the views of men of learning and great distinction, 
 and also from the fact that nine of the amendments emanat- 
 ing from it were adopted. I shall not discuss these amend- 
 ments at length as this is not a history of the convention. 
 
 ' Journal of the Convention, 1820, p. 629. 
 " Ibid., p. 631 and reference in note. 
 
 ' Constitution of Massachusetts, Article III of Chap. V, reserved to the 
 Legislature this right. 
 
46 MASSACHUSETTS GOVERNMENT 
 
 One of the most significant was the last article which pro- 
 vided for future amendments to the Constitution. This 
 stipvilates, as we know, that a proposed amendment to 
 become effective must be passed by two successive Legisla- 
 tures and then adopted by the people. Unlike the provision 
 in the Constitution for over-riding a veto, however, which 
 requires a vote of two- thirds of the members of each body, a 
 constitutional amendment, though it must be voted for by 
 two-thirds of the members of the House of Representa- 
 tives present and voting thereon, requires only a majority 
 vote of the Senate. The reason for this may be summed up 
 in a few words, from the remarks of Daniel Webster on 
 page 414 of the Journal of the Massachusetts Convention of 
 1820, where he says, " It has been heard repeatedly in 
 debate, that if the Senate was organized in the manner pro- 
 posed, and two-thirds of the Senate are required to assent 
 to any amendment, it would be in the power of less than 
 one-third of the people to defeat any amendment." Mr. 
 Webster was chairman of the committee that dealt with 
 this subject, and though the original committee report 
 favored a two-thirds vote of each House,^ yet in deference 
 to the objections raised he himself moved to amend so as to 
 require a majority of the Senate and two-thirds of the 
 House of Representatives present and voting thereon.^ 
 
 In connection with this provision for amending the con- 
 stitution we ought to consider the possibiHty of adopting 
 amendments in some other way. Of course the o;ily other 
 way would be by calling a constitutional convention. With 
 this provision in the constitution would it be proper to call 
 a constitutional convention either to amend the constitution 
 or to draw up a new constitution ? 
 
 ' Journal of the Convention, 1820, p. 124. 
 * Ihid., p. 404. 
 
CONSTITUTIONAL CONVENTION OF 1820 47 
 
 Both the Convention of 1820 and that of 1853 were 
 called for the purpose of revising or altering the Constitution. 
 The Convention of 1820 followed this mandate and submit- 
 ted amendments only. The Convention of 1853 submitted 
 amendments and also proposed what was practically a new 
 constitution. Of course in 1820 there was no provision for 
 amendment in the Constitution, that clause not coming 
 into effect until the Convention had adjourned and the 
 article submitted by it had been adopted by the people. 
 
 In 1833 the judges were asked their opinion, first, whether 
 if the legislature submitted to the people the question of call- 
 ing a convention for revising or altering the constitution in 
 any specified parts of the same and the people voted favor- 
 ably, the convention could propose amendments in other 
 parts of the constitution not so specified; and, second, 
 whether any specific or particular amendment could be 
 made to the constitution in any other manner than that 
 prescribed in the ninth article of the amendments. The 
 judges answered to the first question that "considering 
 that the constitution has vested no authority in the 
 legislature, in its ordinary action, to provide by law for 
 submitting to the people the expediency of calling a 
 convention of delegates, for the purpose of revising or 
 altering the constitution of the commonwealth, it is diffi- 
 cult to give an opinion upon the question, what would be 
 the power of such a convention, if called. If, however, 
 the people should, by the terms of their vote, decide to call 
 a convention of delegates to consider the expediency of 
 altering the constitution in some particular part thereof, we 
 are of opinion that such delegates would derive their whole 
 authority and commission from such vote; and, upon the 
 general principles governing the delegation of power and 
 authority, they would have no right, under such vote, to act 
 
48 MASSACHUSETTS GOVERNMENT 
 
 upon and propose amendments in other parts of the con- 
 stitution not so specified." ^ And on the second question, 
 that " under and pursuant to the existing constitution, 
 there is no authority given by any reasonable construction 
 or necessary implication, by which any specific and partic- 
 ular amendment or amendments of the constitution can be 
 made, in any other manner than that prescribed in the ninth 
 article of the amendments adopted in 1820. Considering 
 that previous to 1820 no mode was provided by the constitu- 
 tion for its own amendment, that no other power for that 
 purpose, than in the mode alluded to, is anywhere given in 
 the constitution, by implication or otherwise, and that the 
 mode thereby provided appears manifestly to have been 
 carefully considered, and the power of altering the constitu- 
 tion thereby conferred to have been cautiously restrained 
 and guarded, we think a strong implication arises against the 
 existence of any other power, under the constitution, for the 
 same purposes." ^ 
 
 Light is also given us in relation to this matter by the 
 words of Mr. Webster in offering the resolution for amending 
 the constitution in the Convention of 1820 where he suggests 
 that after the amendments adopted by the Convention of 
 1820 there was slight chance of a demand arising for any 
 great changes. " No revision of its general principles would 
 be necessary and the alterations which should be called for 
 by a change of circumstances would be limited and specific. 
 It was therefore the opinion of the committee that no provi- 
 sion for a revision of the whole constitution was expedient 
 and the only question was in what maimer it should be 
 provided that particular amendments might be obtained. It 
 was a natural course and conformable to analogy and prece- 
 
 1 6 Gushing (Mass.), 574-575- 
 
 2 Ibid., p. 574. 
 
CONSTITUTIONAL CONVENTION OF 1820 49 
 
 dent in some degree that every proposition for amendment 
 should originate in the legislature under certain guards and 
 be sent out to the people." ^ 
 
 And in the address issued by the Convention to the people 
 the statement is made, among other things, that " it may 
 be necessary that specific amendments of the constitution 
 should hereafter be made. The preparatory measures in 
 assembling a convention, and the necessary expense of such 
 an assembly, are obstacles of some magnitude, to obtaining 
 amendments through such means; . . . We believe that the 
 constitution will be sufficiently guarded from inexpedient 
 alterations, while aU those which are found to be necessary, 
 will be duly considered and may be obtained with compara- 
 tively small expense." ^ 
 
 There is also an opinion of the judges in Rhode Island 
 as to calling a convention to frame a new constitution and 
 the judges answered that it could not be done as the Consti- 
 tution had a provision for amendment.' 
 
 From the above quotations and authorities we can arrive 
 at fairly definite conclusions in relation to this compli- 
 cated subject. We note that in the Massachusetts case the 
 opinion was on the question of calling a convention to make 
 specific amendments, while in the Rhode Island case it was as 
 to calling a convention to draw up a new constitution. The 
 language above quoted as used in the Convention of 1820 
 also shows that the delegates had in mind not a general 
 revision of the constitution but merely the adoption of 
 specific amendments. Thus it would be quite natural and 
 expected that while the legislature might submit the pro- 
 position for calling a convention to frame a new constitution 
 or to revise the old one in indefinite and undetermined re- 
 
 ' Journal of the Convention, 1820, p. 413. 
 
 ' Ibid., p. 631. ' 14 Mode Island, 649. 
 
50 MASSACHUSETTS GOVERNMENT 
 
 spects yet where the constitution provides a definite method 
 for the adoption of specific amendments no such amend- 
 ments can be adopted in any other way. This power would 
 not be included under a general grant of legislative power. 
 The power to propose amendments to the constitution is not 
 a legislative power, and therefore does not exist unless pro- 
 vided for in the constitution. Yet it seems to be granted, 
 except in the Rhode Island case, that the legislature has 
 power to call a convention unless there be express pro- 
 hibition in the constitution. This is estabhshed by long 
 usage and also by general legislative power extending to 
 all subjects not prohibited by their own or the federal con- 
 stitution.i 
 
 Any one who desires to obtain an excellent and exhaustive 
 discussion of this whole subject should consult Jameson's 
 standard work on Constitutional Conventions. In dealing 
 with the question of a convention's exceeding its powers he 
 is also illuminating. A convention would seem to derive its 
 powers from the vote adopted by the people in calling it. 
 Yet the majority of the delegates in 1853, though called 
 only to alter or revise the Constitution, proceeded to sub- 
 mit a new constitution. They exceeded their powers, but 
 having the votes nothing seemed to stand in their way. 
 What the Courts would have said was left undetermined as 
 the people took the decision into their own hands by reject- 
 ing the work of this Convention when it was referred to 
 them. The delegates who framed the Constitution of the 
 United States in a similar manner may also have exceeded 
 the authority given them, but the people of the several 
 States in that case ratified their work. 
 
 ' Jameson, Treatise on ConstituHonal Conventions, sec. 574, h. 
 
CHAPTER IV 
 THE CONSTITUTIONAL CONVENTION OF 1853 
 
 Four amendments to the Constitution were adopted be- 
 tween the Convention of 1820 and that of 1853. They re- 
 lated to the change in the political year, to public worship, 
 to the number of, and the method of electing, members of 
 the House, Senate and Council, and to the abolition of a 
 freehold or any other estate as a qualification for holding a 
 seat in the General Court or the Executive Council. 
 
 In 1851 a majority of the people voted against an Act sub- 
 mitted to them by the Legislature providing for the calling 
 of a constitutional convention. In the following year the 
 question was again submitted, and they voted favorably 
 on it. 
 
 The Convention met on the 4th of May, 1853, at the 
 State House in Boston. Nathaniel P. Banks, Jr., was chosen 
 President. The Convention adjourned on the first of August 
 after finishing its work, providing for the submission of the 
 same to the people, and appointing a committee to meet 
 and count the votes. The new constitution submitted 
 by the Convention was rejected by the people. The pro- 
 ceedings of the Convention were of so much importance, 
 however, its reasons for submitting the various propositions, 
 the causes of rejection by the people, and the discussions 
 on the various points at issue are so interesting, are so illu- 
 minating, that it is well worth while entering into a con- 
 sideration of its history. Though there were many good 
 propositions in the Constitution submitted there were also 
 bad ones, and in spite of the precept de mortuis nil nisi 
 bonum I feel at liberty to criticize that part of the work. 
 
52 MASSACHUSETTS GOVERNMENT 
 
 Personnel and Work of the Convention 
 
 There was much opposition in the Convention to the 
 adoption of various propositions, but the Whig party as a 
 whole was discredited, and politics played a great part in 
 the proceedings as well as in the initial calling of the Con- 
 vention. Under the call for the Convention, each town and 
 city was to elect as many delegates as it had representa- 
 tives in the General Court. They were called together just 
 as they had been in 1820, for the purpose of revising or 
 altering the Constitution of government of the Common- 
 wealth.' 
 
 Henry Wilson, who was later Senator from Massachusetts 
 and Vice-President of the United States, John Davis, who 
 had been Governor and Senator, Henry L. Dawes, who was 
 also afterwards Senator, Charles Sumner, who was then 
 Senator, Messrs. Morton, Briggs and Boutwell, all of whom 
 had been Governors of Massachusetts, and Messrs. Banks 
 and Butler, who were destined to be Governors, were all 
 members of this Convention, as were also such able attor- 
 neys as Mr. Choate, who had been Senator, Mr. Bartlett, of 
 Boston, and many other distinguished men. 
 
 Eight distinct propositions were submitted to the people. 
 
 The first proposition was a new constitution. 
 The second related to habeas corpus. 
 The third related to the rights of juries. 
 The fourth related to claims against the Commonwealth. 
 The fifth related to imprisonment for debt. 
 The sixth related to sectarian schools. 
 The seventh related to the creation of corporations. 
 The eighth related to the formation of banks and requiring 
 security for bank bills. 
 
 ' As to the legality of the action taken by this Convention, see aiove, 
 pp. 47-50. 
 
CONSTITUTIONAL CONVENTION OF 1853 53 
 
 The most important proposals and alterations were placed 
 in the new constitution. There was much opposition to 
 submitting any questions to be voted on as single proposi- 
 tions. Certainly if any were to be submitted they should all 
 have been submitted as one constitution or else as separate 
 propositions and not some jumbled together in a new consti- 
 tution and others left to the people as separate amendments, 
 some of which could have been passed as Legislative acts. 
 
 To return, however, to proposition number one — the new 
 constitution. It is an enlightening document but some of its 
 provisions were very unscientific, to say the least. The 
 whole thing was a jumble and a series of political compro- 
 mises. Let me touch on a few of the important changes 
 proposed. 
 
 Changes Proposed in the Rejected " New 
 Constitution " of 1853 
 
 Sessions of the General Court were to be limited to one 
 hundred days. Forty senatorial districts were provided for 
 to take the place of coimty representation. The property 
 qualification for the Governor and Lieutenant-Governor was 
 abolished. Town representation for the House of Repre- 
 sentatives was still maintained but altered to some degree. 
 A Council of eight districts was provided for. The direct 
 election by the people of Attomey-General,^ Treasurer, 
 Auditor, and Secretary'' was estabhshed. Property quaUfi- 
 cation for voting was abohshed. 
 
 And then followed provisions which probably led to the 
 defeat of the whole constitution, but which were apparently 
 
 1 Appointed by the Governor vinder the Constitution. Chap. II, § I' 
 Art. DC. 
 
 2 Chosen by the Legislature under the Constitution. Chap. II, § IV, 
 Art. I. Acts of 1849, Chap. 56. Acts of igoS, Chap. S97- 
 
54 MASSACHUSETTS GOVERNMENT 
 
 put in the same instrument instead of being left as separate 
 amendments because the supporters of the doctrines thought 
 that by being included with so many good things they would 
 have a better chance of adoption than if left to stand on 
 their own merits. These clauses provided not only for the 
 election of sheriffs,' district attorneys, clerks of court, etc., 
 all of which offices have since quite properly become elective, 
 but also for the election of probate judges ' and for the ap- 
 pointment of judges of the Supreme Court and the Court of 
 Common Pleas for a term limited to ten years. There was 
 also a provision for voting every twenty years on the ques- 
 tion of holding a constitutional convention. This proposi- 
 tion was mandatory, and gave the people no choice as to 
 whether or not they wanted to vote on the question. 
 
 The best among these various propositions were adopted 
 later as separate amendments to the Constitution. For 
 instance, in 1855, amendments were accepted providing for 
 eight Councillors to be chosen by districts; for election by 
 the people of the Secretary, Treasurer, Auditor, and Attor- 
 ney-General; for the election of sheriffs, registers of probate, 
 clerks of court, and district attorneys. In 1857 a change in 
 the method of election of the House of Representatives was 
 adopted, and instead of continuing the system of town 
 representation, provision was made for a House of Repre- 
 sentatives of two himdred and forty members apportioned 
 to the several counties as equally as possible, according to 
 the number of voters. In the same year, too, forty sena- 
 torial districts were provided for, one senator to come from 
 each district, and each district to contain as nearly as pos- 
 sible an equal number of voters. 
 
 The third amendment of the Constitution, adopted in 
 1820, had done away with all the property qualifications for 
 
 • See note i, page 53. 
 
CONSTITUTIONAL CONVENTION OP 1853 55 
 
 voting except payment of a state and county tax. In 1891 
 even this tax requirement was done away with as had been 
 suggested in this proposed constitution of 1853, so that from 
 1 89 1 on not even payment of a poll tax was required as a 
 condition for voting. The property qualification for Gover- 
 nor and Lieutenant-Governor was abolished by an amend- 
 ment passed in 1892. 
 
 Where the Proposed Constitution 
 OF 1853 WAS AT Fault 
 
 I have now spoken of the most important changes pro- 
 vided for in this proposed constitution. There was a great 
 deal of brilliant discussion and much illuminating debate in 
 the convention itself, and afterwards numerous speeches 
 were made and letters written, some under assumed and 
 sonorous names, in relation to the document. Eminent 
 Whigs and Democrats assailed the document, aiming their 
 shafts particularly at the disproportionate representation 
 provided for in the House of Representatives, and the 
 change of method in judicial tenure. 
 
 (a) In the Apportionment of Representatives 
 
 The apportionment of representatives was imfair. For 
 instance, the town of Hingham, with 3,962 inhabitants, was 
 to have one representative and the town of Chesterfield, 
 with 1,009 inhabitants, was also to have one. According to 
 Governor Morton, thirty towns with a population of 16,292 
 were entitled to thirty representatives, while New Bedford, 
 with 16,441 inhabitants, was given only five representatives. 
 Naturally the cities would not allow such an apportionment 
 to be thrust down their throats. 
 
56 MASSACHUSETTS GOVERNMENT 
 
 {b) In Limiting the Tenure of Judges 
 
 The proposal to have a limited tenure for judges was 
 
 excoriated by many distinguished men. The arguments 
 
 against it were well stated. Let me quote the words of 
 
 G. S. Hillard, who wrote under the name of Silas Standfast. 
 
 In speaking of the proposed election of probate judges he 
 
 says: 
 
 A judge of probate stands in relations to the community which de- 
 mand, above all things else, honesty, firmness, and impartiality. He 
 must be above suspicion in these respects. He is constantly deciding 
 questions of property; and the purse-vein of our people beats sensi- 
 tively. He has to pass upon matters where family feeling is involved, 
 — to lay his hand upon chords which run back to the core of the heart. 
 At present, — holding his office upon the tenure of good behavior, — 
 directly responsible only to the Legislature, who may remove or im- 
 peach him, — we can rely upon the best exercise of his best faculties. 
 The judge of probate is now, to borrow the language of the Constitu- 
 tion, " as free, impartial, and independent, as the lot of humanity will 
 admit." But elect him for three years, make him responsible to a 
 political party and a political press, and it cannot be so.' 
 
 As to the proposed change in tenure of Judges of the 
 Supreme Court and Court of Common Pleas from life to a 
 term of ten years, he is still more explicit and I wish to 
 quote him more at length: 
 
 The judge is, first, a man; second, a lawyer; and, third, a judge. 
 The framers of our admirable Constitution proposed to themselves 
 two objects in regard to the Judiciary: First, to get the best possible 
 judges; and, second, to secure afterwards the best exercise of their 
 best judicial faculties. The proposed change will do neither. It will 
 give us judges inferior to those we have always had, and will expose 
 them to dangerous influences and temptations heretofore unknown in 
 Massachusetts. 
 
 What is the first great quality in a judge ? Beyond all question, 
 INDEBENDENCE. He may be learned, wise, and conscientious; but if 
 
 ' Discussions on the Constitution proposed to the people oj Massachusetts by 
 The Convention of 1853, p. 141. 
 
CONSTITUTIONAL CONVENTION OF 1853 57 
 
 he be not independent, if he have not the courage which rests upon 
 independence, there is not the least security that his good qualities 
 will move in the right direction. This is the guardian virtue, which 
 stands at the gate and keeps watch over the rest. Now, let the judge 
 know and feel that the Governor, at the end of ten years, may or may 
 not reappoint him; suppose him also to be a man of little property, 
 and dependent for the just support of his family upon his income, — 
 do you imagine that he will be perfectly independent, that no shadow 
 of apprehension, no touch of favor, will ever pass over his mind ? . . . 
 
 Judges are cut out of the same cloth as other men, and I know 
 enough of human nature to know that all men should pray fervently to 
 be delivered from temptation. . . .^ 
 
 It is a stern fact, from which there is no escaping, that he who con- 
 trols a man's bread exerts, sensibly or insensibly, more or less control omer 
 his thoughts and his will. I do not mean to say, that, come what wiU, 
 we shaU have base, venal, and corrupt judges in Massachusetts, or 
 that their sycophancy and subserviency will be palpable, glaring, 
 monstrous; but I do say, that the lofty and eminent excellence which 
 we have had in that department will no longer be there; and that we 
 must hereafter be content to associate with our ideas of a judge, a less 
 conspicuous merit, and a less distinguished abihty, than we now rest 
 upon for the protection of our persons, our property, and om: char- 
 acters, — in short, all that is worth protecting or Uving for. 
 
 As a man thinketh in his heart, says the wise man, so is he. This 
 saying, applicable in so many ways, applies also to the case of judges. 
 At present, no man, however dissatisfied he may be with the decisions 
 of the court, can say, or have reason to think, that the judges have been 
 moved by anjrthing but their convictions; but let them be in a posi- 
 tion to give color to the charge of being actuated by foreign influences, 
 and especially poUtical biases, and discontent will be sure to vent itself 
 in that way. You know how many of the cases that come before our 
 courts have more or less of a political aspect, especially constitutional 
 cases, and you also know that many lawyers are vehement poUtidans; 
 but perhaps you do not know what I can tell you, that there are some 
 lawyers who cannot conceive it to be consistent with the scheme of 
 Divine Providence in the government of this world, that they should 
 ever be mistaken. Therefore, when the court decides against them, 
 they feel as if chaos were come again, — that suns will cease to rise, 
 and stars refuse to shine. Now would you like to see such a state of 
 things in Massachusetts, as that a lawyer-politician might ventilate 
 
 ' Discussions on the Constitution proposed to the people of Massachusetts by 
 The Convention of 1833, p. 152. 
 
58 MASSACHUSETTS GOVERNMENT 
 
 his wrath, after an adverse decision, in words like these, muttered in 
 the bar, but not inaudible: " You think it a fine thing to sit up there 
 on the bench and make law to suit your own politics; but your course 
 will soon be run. Your ten years will be out next year, and we will 
 pitch you overboard with as little ceremony as you pitch overboard a 
 law that does not suit you, and put a man in your place who will have 
 some sympathy with the people, and respect their wishes a little more 
 than such an old fogie as you." . . . And just so here, the Judiciary 
 stands between the government and the individual, and it ought to 
 stand there; but then the government here is the people; and we want 
 a Judiciary strong enough to protect the individual against the people, 
 in case the people should he wrong. We want a judge who will not fear a 
 political party or a political press. We insist that every criminal, how- 
 ever odious his crime may have been, should have s.fair and dispas- 
 sionate trial. We claim and need a Judiciary strong enough to protect 
 a trembling culprit against popular violence and political persecution. 
 We insist, when the constitutionality of a law is before the court, that 
 no judge should feel that his chance of reappointment may be af- 
 fected by his decision. We claim to have political offendeis tried as 
 impartially, — with as much freedom from executive influence, — as 
 John Marshall tried Aaron Burr. Does any man say that John Mar- 
 shall would have tried Aaron Burr in the same way, had the tenure of 
 the Judges of the Supreme Court been for ten years ? I reply, that, 
 with such a provision in the Constitution of the United States, you 
 would never have had John Marshall, or any man like him, on the 
 bench. 
 
 The Judiciary of Massachusetts is one of the brightest jewels in her 
 honored crown; we do not perceive all its lustre, because it is worn 
 upon our own brow. But go to Arkansas, to Wisconsin, to Georgia, 
 and ask there what is the authority of the Massachusetts Reports, 
 and you would be enlightened on this subject. Your heart would 
 swell with honorable pride at the respect paid, in those distant States, 
 to the decisions of our Judges, whom the new Constitution insults by 
 virtually pronouncing them unfit to appoint their own clerks 1 Such 
 influence as we exert, through our courts, is one of the purest and 
 highest that man can have over man. It has no alloy of passion or 
 prejudice; it is the calm supremacy of truth, reason and conscience. 
 Are we to renounce this ? Are we to throw it away in pure wanton- 
 ness ? I trow not. The people have been taken by surprise upon this 
 question of the Judiciary. They will give their answer at the polls.' 
 
 ' Discussions on the Constitution proposed to the people of Massachusetts by 
 The Convention of 1833, pp. 153-155. 
 
CONSTITUTIONAL CONVENTION OP 1853 59 
 
 Conclusion 
 
 The question was decisively answered at the polls. The 
 hope of those who thought to get through some of these 
 amendments by holding out as a bait to the people other 
 things in the Constitution which they wanted, were doomed 
 to disappointment. The proposed Constitution and all the 
 propositions submitted therewith, good and bad, were one 
 and all voted down. Massachusetts continues, therefore, 
 xmder her original Constitution adopted in 1780. It has an 
 efl&cient method of amendment. This is much less expen- 
 sive than calling delegates together in convention and more 
 is apt to be accompUshed for the people by leaving distinct 
 and separate questions to them than by jumbling so many 
 together in one document as was done in 1853. If separate 
 amendments are submitted the people can vote for the ones 
 they want and against the ones they do not want. They 
 cannot be duped now any more than they could be in 1853 
 by party cUques and political coalitions into accepting things 
 they do not want for the sake of getting other things which 
 they do want. They thought that by waiting they could 
 obtain what they desired without taldng bitter pills along 
 with it, and the fact that almost immediately separate 
 amendments were adopted by the Legislature and sent to 
 the voters covering the parts of the Constitution where 
 it was known a change was desired, shows that they were 
 right. 
 
CHAPTER V 
 
 THE GENERAL COURT 
 
 The Constitution of 1780 provided that the legislative body 
 of the Commonwealth should be styled the General Court 
 of Massachusetts. This is a name that is unusual and dis- 
 tinctive because in most States the two legislative bodies are 
 commonly called the Legislature. The name arose from the 
 fact that originally the body heard judicial questions and 
 was the final court to which the people could go on general 
 matters, both legal and legislative. Yet it is commonly 
 known as the Legislature, even by people in Massachusetts. 
 I remember once when Dr. Everett was to deliver an histori- 
 cal address at the Old South Church, one of the ushers, 
 a college graduate and presumably well-informed citizen, 
 came up and asked him who the men were for whom certain 
 seats were reserved, and when the Doctor told him they 
 were for the General Court he remarked that he thought 
 they were for the Legislature. 
 
 Original Provisions 
 
 As has been said, the first General Court under the Con- 
 stitution consisted of two hundred members.' It was not 
 many years before the membership of the House of Repre- 
 sentatives alone exceeded that figure and often rose to over 
 four himdred, until in the year 1857 an amendment to the 
 Constitution was adopted providing that the House of 
 Representatives should consist of two hundred and forty 
 
 1 See above, p. 27. 
 60 
 
THE GENERAL COURT 6 I 
 
 members. 1 The Senate was at first composed of forty men 
 elected as councillors and senators, nine persons being 
 annually chosen from this number by joint ballot of the 
 Senate and House of Representatives to act as councillors. 
 This vacated their seats in the Senate and left an upper 
 branch of only thirty-one. As a seat in that body was more 
 desirable, being more influential than a seat in the Council, 
 men frequently refused to allow themselves to be elected 
 into the Council. 
 
 Changes by Various Constitutional 
 
 Amendments 
 
 At first there had been a great deal of discussion as to 
 whether there should be a bi-cameral legislature or not,'' and 
 we have seen how the men advocating this system prevailed 
 over those who favored a single chamber. The plan of 
 government was modeled so that the Senate or upper branch 
 should represent property, and the House, persons. Ac- 
 cordingly, it was provided that the General Court in assign- 
 ing the number of senators to be elected by each district 
 should govern themselves by the proportion of taxes paid by 
 the district. In 1840, provision was made for separating the 
 election of councillors and senators.' Forty senators were 
 to be chosen from the former districts and nine councillors 
 were to be chosen by joint ballot from the people at large. 
 This amendment also did away with the property qualifica- 
 tion as a condition for holding a seat in either branch of the 
 General Court or in the Executive Council, but provision is 
 still retained in the Constitution that to be a member of the 
 Senate or the Governor's Council one must have been an 
 
 1 Constitution of Massachusetts, Article of Amendment XXI. 
 
 ^ See above, p. 22, and note. 
 
 ' Constitution of Massachusetts^ Article of Amendment XIII, 
 
62 MASSACHUSETTS GOVERNMENT 
 
 inhabitant of the Commonwealth for at least five years im- 
 mediately preceding his election. A member of the House 
 must have been an inhabitant of the district from which he 
 is chosen one year next preceding his election. Senators, 
 also, must be inhabitants of their district at the time of 
 election and both they and representatives cease to repre- 
 sent their districts when they cease to be inhabitants of the 
 Commonwealth. 
 
 Another amendment in 1855 ' made provision for the 
 present mode of electing councillors by establishing that the 
 Commonwealth be divided into eight districts, with one 
 coimdllor elected from each district by the voters and not by 
 the General Court as heretofore had been the custom. Two 
 years later Amendment XXII was ratified, providing that 
 the old senatorial districts should be abandoned and new 
 districts laid out from time to time, each district to contain 
 as nearly as possible, an equal number of legal voters. Rep- 
 resentation, both in the House and in the Senate is, accord- 
 ingly, now based on persons and not on property. 
 
 Originally, too, voters had to be possessed of a free-hold es- 
 tate of the annual income of three pounds, or any estate of the 
 value of sixty pounds. Article III of the Amendments did 
 away with all but a poll tax qualification and even that was 
 abolished by the thirty-second Article of the Amendments. 
 Vacancies in the House and in the Senate are filled by the 
 people from the districts, and the Governor and the Legisla- 
 ture have nothing to do with this matter as they have in the 
 case of a vacancy in the office of Secretary of State, Attorney 
 General or other State officer or a member of the Executive 
 Council. Up to i860, however, vacancies in the Senate were 
 filled by the Legislature.' In that year an amendment was 
 
 ' Constitution of Massachuselts, Article of Amendment XVI. 
 2 Ibid., Chap. I, § 2, Art. IV. 
 
THE GENERAL COURT 63 
 
 ratified providing that all vacancies in that body be filled by 
 election by the people of the unrepresented districts upon 
 the order of a majority of the senators elected.^ 
 
 Provisions that sixteen senators should constitute a 
 quorum and not less than sixty members of the House, were 
 done away with by an amendment passed in 1891, which 
 substituted a majority of the members in each House.'' 
 
 Annual Elections and Sessions 
 
 The Legislature of Massachusetts has always met every 
 year and been elected every year. Several other States of 
 the Union have yearly sessions of their Legislatures but 
 Massachusetts is the only one left having both yearly ses- 
 sions and yearly elections. To be sure, a change has been 
 agitated and proposed articles of amendment adopted by the 
 Legislatures of 1895 and 1896 were submitted to the people, 
 providing for biennial elections of State ofl&cers, and provid- 
 ing for biennial elections of members of the General Court. 
 Both proposals were rejected. 
 
 The General Court was given power to establish courts,' 
 to pass laws not repugnant to the Constitution, to name and 
 style or pass laws for naming and styling all civil officers 
 whose election or appointment had not been provided for in 
 the Constitution. It was also given power to impose pro- 
 portional and reasonable assessments, rates and taxes, and 
 to impose reasonable duties and excises upon any produce, 
 goods, wares, merchandise and commodities, and was 
 required to provide for a valuation of estates at least once 
 in every ten years.* The question of taxation and the con- 
 
 1 Article of Amendment XXIV. 
 
 2 Ibid., XXXin. 
 
 ' Constitution of Massachusetts, Chap. I, § I, Art. III. 
 
 « Ibid., Chap. I, § I, Art. IV. Article of Amendment XLIV. 
 
64 MASSACHUSETTS GOVERNMENT 
 
 struction of these clauses is too exhaustive a subject to be 
 treated by me in this little outUne. There are plenty of 
 valuable books and court decisions on this most important 
 subject. 
 
 Power to Grant City Charters 
 
 The second article of amendment gave to the General 
 Court power to charter cities, provided that the town con- 
 tained twelve thousand inhabitants and a majority of them 
 voted for incorporation as a city. Strange to say, up to this 
 time no city had existed in Massachusetts. It was not until 
 two years later, in 1822, that Boston became a city and she 
 was the first one in Massachusetts. Colonial Governors 
 granted charters in many of the colonies but not in Massa- 
 chusetts. The first city in this country to receive a charter 
 was New York in 1686.^ 
 
 Direct Legislation 
 
 It is a far cry from 1686 to 1913 and from the second 
 amendment to the forty-second, but in the sequence of 
 events it is not such a stretch as the one we noted between 
 the referendum of the Plymouth Colony and that same 
 question today.^ 
 
 The forty-second amendment, ratified in 1913, provides 
 that the General Court may refer to the people for their 
 rejection or approval at the polls any act or resolve or any 
 part or parts thereof. This amendment was adopted as the 
 judges had given an opinion that a State-wide referendum 
 woiild be unconstitutional.' For many years the use of the 
 referendum had been agitated in the various States of the 
 Union. Some States had adopted it and also gone further 
 
 ' W. B. Munro, Government of American Cities, p. .i. 
 2 See above, pp. 4, 5. ' 160 Massachusetts, 586. 
 
THE GENERAL COURT 65 
 
 and adopted the initiative which allows the people on peti- 
 tion of a certain number of voters to initiate a law as well 
 as to have it submitted to them after its passage through the 
 Legislature. Massachusetts held out for a long time and 
 when she did adopt the principle she did not adopt the com- 
 pulsory referendum but only empowered the General Court 
 to attach a referendum clause to such measures as it might 
 see fit. Up to this time the Legislature had no power to do 
 this to the extent of a State-wide referendum as the case 
 referred to shows. 
 
 Amendments to Permit the Use of Voting Machines 
 
 When voting machines were invented there was much dis- 
 cussion as to the legality of using them in Massachusetts, it 
 being contended that the Constitution contemplated the 
 marking of ballots by each individual with his own hand, and 
 not by mechanical device. Indeed, the Constitution pro- 
 vides specifically that every member of the House shall be 
 chosen by written votes.^ The question was referred to the 
 Judges of the Supreme Court for an opinion and the majority 
 decided that the use of voting machines would be constitu- 
 tional.^ This question was afterwards put beyond range of 
 doubt by an amendment to the Constitution, adopted in 
 1911, specifically providing that voting machines might be 
 used.' 
 
 Constitutional Privileges or Senate and House 
 
 The Senate and House are both made judges of the quali- 
 fications of their own members.^ Each body, in other words, 
 
 ' Constitution of Massachusetts, Chap. I, § III, Art. III. 
 
 * 178 Massachusetts, 605. ' Article of Amendment XXXVIII. 
 
 * Constitution of Massachusetts, Chap. I, § II, Art. IV, and Chap. I, 
 § m, Art. X, respectively. 
 
66 MASSACHUSETTS GOVERNMENT 
 
 can eject one of its members for any cause, or apparently for 
 no assigned cause. It is customary to have a committee 
 appointed and regular hearings given, though this is not 
 required. The Senate, the House, and the Governor and 
 Council have authority to punish by imprisoimient every 
 person not a member who shall be guilty of disrespect by 
 disorderly or contemptuous behavior in its presence or who 
 shall threaten harm to the body or estate of its members for 
 anything said or done in the sitting or who shaU assault any 
 of them or assault or arrest any witness or other person 
 ordered to attend them, while going or returning, or who 
 shall rescue any person arrested by their order, but no im- 
 prisonment shall exceed thirty days.^ No member of the 
 House can be arrested while he is attending the Assembly or 
 going to or returning from the same. 
 
 The Impeachment Power 
 
 In connection with the right of the House and Senate to 
 oust their own members, we should distinguish this from the 
 power of impeachment. Such impeachments are brought by 
 the House of Representatives, and are tried before the 
 Senate. Any ofl&cer of the Commonwealth is liable to im- 
 peachment for misconduct and mal-administration in 
 office.* A member of the House or Senate is probably not 
 such an officer of the Commonwealth and indeed whether 
 legislators are ever subject to impeachment in this country is 
 a disputed question. United States Senators have been held 
 not to be civil officers of the United States as they are dele- 
 gated by the States.' Many interesting questions have 
 
 ' Constitution of Massachusetts, Chap. I, § III, Arts. X, XI. 
 
 ' Ibid., Chap. I, § II, Art. VIII, and Revised Laws of Massachusetts, 
 Chap. 6, I 3, providing that the Governor and Council may remove the 
 State Treasurer under certain circumstances. 
 
 ' Finley and Sanderson, American Executive and Executive Methods, p. 6o. 
 
THE GENERAL COURT 67 
 
 arisen in connection with impeachment proceedings. When 
 an accusation is formally presented the accused is said to be 
 impeached. If that accusation is sustained and judgment 
 pronounced, the accused is convicted on impeachment. The 
 Constitution of New York State is peculiar in this matter, 
 Article IV, section 6 providing that " in case of the impeach- 
 ment of the Governor," . . . etc., " the powers and duties 
 of the office shall devolve upon the Lieutenant-Gover- 
 nor . . ." 
 
 When the charges against Governor Sulzer were laid 
 before the Senate by the diUy appointed Committee of the 
 Assembly, the question arose whether or not the Governor 
 was, under the Constitution, thereby superseded in office by 
 the Lieutenant-Governor. Under the Constitution of the 
 United States the chief Executive would not be ousted until 
 convicted on impeachment. We had an example of this 
 when Andrew Johnson was impeached but not convicted. 
 He remained President during his trial. In Massachusetts 
 the same rule would apply, but under the special wording of 
 the New York Constitution it was held that as soon as the 
 Assembly adopts and presents to the Senate its accusation, 
 the Governor ceases to act as such and may resume the 
 functions of Governor only when and if acquitted. 
 
 Impeachment est Massachusetts 
 
 There have been several cases of impeachment in Massa- 
 chusetts. The course of proceeding is to file a petition at the 
 State House for impeachment. Then a special committee 
 of the House is appointed to act thereon or the matter may 
 be sent to one of the regular committees. If the committee 
 reports in favor of impeachment it must be because of 
 alleged misconduct or mal-administration in office. The 
 report being adopted by the House, a committee is then 
 
68 MASSACHUSETTS GOVERNMENT 
 
 appointed to go to the Bar of the Senate and in the name of 
 the House to impeach and exhibit articles of impeachment. 
 The House appoints managers to conduct the trial and the 
 Senate is duly sworn and sits as a court to hear the evi- 
 dence. The Constitution provides that when they render 
 judgment it shall not extend further than removal from 
 office and disqualification from holding office in the Com- 
 monwealth. A convicted official, however, is also liable to 
 indictment, trial and punishment, according to the laws of 
 the land. 
 
 The first case that arose in Massachusetts seems to have 
 been that of William Greenleaf , Sheriff of Worcester County. 
 The proceedings were held in Faneuil Hall on the charge that 
 the accused had collected money and kept it illegally. The 
 Sheriff was found guilty and removed from office. That was 
 in 1788. In 1794 a justice of the peace, WilUam Hunt, was 
 impeached, and the session was again held in Faneuil Hall. 
 In 1800 and in 1807, two other justices of the peace were 
 impeached, the judgment in the second case being " not 
 guilty." In 182 1 James Prescott, Judge of the Middlesex 
 Probate Court, was impeached, convicted and removed from 
 office. 
 
 In England, all subjects, whether officials or not, are 
 hable to impeachment. Not so in Massachusetts, as we 
 have seen, where the Constitution limits it to officers of the 
 Commonwealth. Originally, impeachment was a criminal 
 proceeding. In some jurisdictions it is even now held that 
 the offense must be an indictable one. The United States 
 Senate, however, has convicted upon impeachment even 
 though the offense was not indictable at common law or 
 imder the Federal statutes. In Pennsylvania a judge was 
 once impeached for preventing an associate from delivering 
 an opinion. It is also interesting to consider what would 
 
THE GENERAL COURT 69 
 
 happen in Massachusetts if an ofl&cial should resign after 
 being impeached. The trial of ex-Secretary Belknap pro- 
 ceeded before the United States Senate after he had re- 
 signed. The question is not absolutely settled, yet a man 
 after resignation ceases to be a civil officer and becomes a 
 private citizen. 
 
 The Originating of " Money Bills " 
 
 The House of Representatives being the popular branch 
 as it represented persons and not property, the Constitution 
 of 1780 provided that all money bills should originate there,' 
 the Senate having the right, however, to propose or concur 
 with amendments as on other bills. The determination of 
 just what this expression " money bills " meant has given 
 rise to considerable speculation. In Massachusetts it has 
 been decided that the words are limited to bills transferring 
 money or property from the people to the State. In other 
 words it includes only bills for raising revenue. A bill ap- 
 propriating money from the Treasury of the Commonwealth 
 is not a " money bill." An elaborate opinion covering this 
 whole subject in great detail and tracing the history of the 
 question from the early days of the English Parliament was 
 delivered by the Massachusetts Supreme Judicial Court in 
 1878, in answer to questions from the Senate and House of 
 Representatives.'' 
 
 Adjournments 
 
 Both the House and the Senate have the right to adjourn 
 for a period not exceeding two days. If they want to ad- 
 journ for a longer time or wish to prorogue, they must have 
 the consent of the Governor and Council.' This power of the 
 
 ' Constitution of Massachusetts, Chap. I, § III, Art. VII. 
 
 2 126 Massachusetts, 557. » Chap. I, § II, Art. VI and § III, Art. VIII. 
 
70 MASSACHUSETTS GOVERNMENT 
 
 Legislature to adjourn itself was one of the matters in dis- 
 pute, it will be remembered, in the provincial days, — one 
 of the things that led to the passage of the explanatory 
 charter in 1726, and the above provision was evidently 
 copied into the Constitution directly from the power granted 
 there.' 
 
 Incompatible Offices 
 
 Before closing this chapter on the General Court we 
 should note various clauses in the Constitution providing 
 against holding incompatible offices. For instance, no 
 Judge of the Supreme Judicial Court, or Judge of Probate, 
 Secretary, Attorney-General or Treasurer of the Common- 
 wealth, Sheriff, Clerk of the House, Register of Probate, 
 Register of Deeds or Clerk of the Supreme Court can sit in 
 the Senate or House of Representatives. In early days this 
 prohibition extended also to the president, a professor or an 
 instructor in Harvard College, but this disability was re- 
 moved in 1877.^ If a member of the Massachusetts Senate 
 or House accept one of the above offices, he thereby im- 
 pliedly resigns his seat in the Legislature. Also if a judge 
 of the Supreme or Probate Court accept a seat in the Council 
 he thereby ceases to be a judge and if a member of the 
 Council accepts a place on the Supreme bench or the Pro- 
 bate Court bench he thereby vacates his seat in the Council.' 
 The same article also provides that no one shall hold more 
 than one of the following offices, namely, " Judge of Pro- 
 bate, Sheriff, Register of Probate, or Register of Deeds; and 
 never more than any two offices, which are to be held by 
 appointment of the Governor, or the Governor and Council, 
 or the Senate, or the House of Representatives, or by the 
 
 1 See above, p. 14. * Article of Amendment XXVII. 
 
 ' Constitution of Massachusetts, Chap. VI, Art. II. 
 
THE GENERAL COURT 7 I 
 
 election of the people of the State at large, or of the people of 
 any county, military ofl&ces and the offices of justices of the 
 peace excepted." 
 
 An amendment to the Constitution ^ provides that " no 
 judge of any court of this commonwealth (except the court 
 of sessions), and no person holding any office under the 
 authority of the United States (postmasters excepted), shall 
 at the same time hold the office of governor, heutenant-gov- 
 ernor, or councillor, or have a seat in the senate or house of 
 representatives of this commonwealth; and no judge of any 
 court in this commonwealth (except the court of sessions), 
 nor the attorney-general, solicitor-general, county-attorney, 
 clerk of any court, sheriff, treasurer and receiver-general, 
 register of probate, nor register of deeds, shall continue to 
 hold his said office after being elected a member of the Con- 
 gress of the United States and accepting that trust, but the 
 acceptance of such trust by any of the officers aforesaid shall 
 be deemed and taken to be a resignation of his said office". 
 
 These articles in the Constitution have been brought 
 before the Supreme Court of Massachusetts for explanation 
 and interpretation. The House of Representatives once 
 asked the judges whether by Article VIII of the Amendments 
 a special justice of the district, police or mimicipal court va- 
 cated his office by accepting a seat in the House of Repre- 
 sentatives. The judges refused to answer the question 
 because, they said: " The question now referred to us does 
 not regard the construction or effect of any statute, or of any 
 contract with the Commonwealth, or any matter which can 
 be affected by legislation. It depends upon a provision of 
 the Constitution which so far as it applies, operates by its 
 own force. The question does not purport to relate to the 
 election or qualifications of a member of the House of Repre- 
 
 ' Article of Amendment VIII. 
 
72 MASSACHUSETTS GOVERNMENT 
 
 sentatives. But the question is whether a certain judicial 
 officer by accepting a seat in the House, vacates his judi- 
 cial office. This appears to us to be not a legislative but 
 a judicial question which cannot be definitely or justly 
 decided without trial and argument." * 
 
 But in another case where the question came before them 
 in a judicial manner in the nature of quo warranto proceed- 
 ings, they held that a judge vacated his office by acceptance 
 of a seat in the House of Representatives and that a special 
 justice of a police court was such a judge as is referred to in 
 the Constitution, saying: " If he did not lawfully hold a seat 
 in the House he could be unseated only by the House itself, 
 which is by the Constitution the final judge of the elections, 
 returns and qualifications of its own members (Constitution 
 of Massachusetts, c. i, § 3, art. 10). But if he unlawfully 
 holds a judicial office, this proceeding by information in be- 
 half of the Commonwealth is the proper process to oust him 
 from the office which he occupies de facto, but to which he 
 has no legal right." ^ Of course there is nothing to make the 
 holder of one of these offices ineligible for another, but he 
 must resign one before accepting the other. Thus a judge 
 of probate has been held by the House of Representatives 
 eligible to take his seat in the House if he resigned his 
 judicial office after election.' 
 
 1 122 Massachusetts, 603. See also p. 84 below. 
 
 ''123 Massachuselts, 529. 
 
 ' Case of Sullivan, Massachusetts Election Cases (ed. 1853) p. 39. 
 
CHAPTER VI 
 
 THE GOVERNOR 
 
 The Governor and the other State officers of Massachusetts 
 are elected for terms of one year. The Governor must have 
 been an inhabitant of the Commonwealth for the seven pre- 
 ceding years. Though elected annually it is generally under- 
 stood and may be called an unwritten rule that a Governor, 
 if his administration proves satisfactory, is entitled to three 
 terms. In former times he was often re-elected for more 
 than three terms. Thus we find that John Hancock, the 
 fijst Governor under the Constitution, held the office first 
 for five years and later for six. John Davis and Marcus 
 Morton were also twice Governor. But in neither case did 
 their terms exceed three years at one time. John Davis re- 
 tired from the Governorship on becoming Senator and on 
 leaving the Senate became Governor again. Governor 
 Morton was elected to his first term by the narrowest 
 plurality ever given. He defeated Edward Everett for a 
 fourth term by one vote. I wonder if they allowed recounts 
 in those days ! Governor John A. Andrew was the last chief 
 Executive to have a term of over three years. 
 
 Originally, a majority vote was required to elect both 
 Governor and Lieutenant-Governor, and if no candidate 
 received a majority vote the election was thrown into the 
 Legislature. If no one received a majority vote for Governor 
 the vote in the Legislature was not by joint ballot, but the 
 House chose two out of the highest four names and the 
 Senate chose the Chief Executive from them.^ In 1855 a 
 
 ' Constitution of Massachusetts, Chap. II, § I, Art. III. 
 
74 MASSACHUSETTS GOVERNMENT 
 
 plurality vote was provided for by amendment to the Con- 
 stitution. So today the election of a Governor or Lieu- 
 tenant-Governor is never thrown into the Legislature. If 
 a vacancy is caused by the death of the Governor or by his 
 absence or for any other reason, the Lieutenant-Governor 
 succeeds; and if, for similar reasons, the Lieutenant-Gover- 
 nor is unable to serve " the Council or a majority thereof " 
 becomes Chief Executive.* 
 
 The Governor's Title 
 
 The Constitution of Massachusetts provides that the 
 title of the Governor shall be " His Excellency." This title 
 arose in the provincial days. It was first used in 1699, when 
 Governor Coote, Lord Bellomont, was Governor. As he was 
 a lord it was thought proper to call him " Your Excellency." 
 None of his predecessors were honored with any such title 
 and his successors retained it only up to 1742, when an order 
 from the King forbade its further use.^ To the framers of 
 the Constitution, then, the title was famiUar and they 
 thought proper to dignify the chief executive with it. 
 
 Nomination of Candidates 
 
 At fijst in the State as in the nation party government 
 was imknown. Hancock, Samuel Adams and Bowdoin were 
 elected because of their standing in the community and their 
 personal following. Before the Revolution, however, the 
 names Whig and Tory were of course in use. Opposition 
 to the Crown government gave birth to the party of Ubera- 
 tion. Caucuses were held to discuss candidates for office. 
 Such meetings had been held even in the days of Israel for 
 the purpose of choosing judges. The word " caucus " is 
 
 ^ Constitution of Massachusetts, Chap. II, § III, Art. VI. 
 ' Hutchinson, History of Massachusetts, Vol. Ill, p. 312. 
 
THE GOVERNOR 75 
 
 said to have arisen from meetings held in the north end of 
 Boston attended by shipping men and caulkers. 
 
 In general, candidates were self-announced according to 
 the English custom at the period. This was particularly the 
 case in the Southern States. In the Northeast and middle 
 colonies parlor caucuses prevailed. John Adams in his diary * 
 gives us an insight into the caucus of the period: 
 
 Boston, February. This day learned that the Caucus Club meets, 
 at certain times, in the garret of Tom Dawes, the Adjutant of the 
 Boston Regiment. He has a large house, and he has a movable parti- 
 tion in his garret which he takes down, and the whole club meets in 
 one room. There they smoke tobacco till you cannot see from one end 
 of the garret to the other. There they drink flip, I suppose, and there 
 they choose a moderator, who puts questions to the vote regularly; 
 and selectmen, assessors, collectors, wardens, fire-wards, and repre- 
 sentatives, are regularly chosen before they are chosen in the town.'' 
 Uncle Fairfield, Story, Ruddock, Adams, Cooper, and a rudis indigesta- 
 que moles of others are members. They send committees to wait on the 
 merchant's club, and to propose and join in the choice of men and 
 measures. Captain Cunningham says, they have often solicited him 
 to go to these caucuses; they have assured him benefit in his busi- 
 ness, etc." 
 
 That the North End caucus did not limit itself strictly to 
 nomination of candidates is shown by the vote it passed 
 leading to the Boston Tea Party.' 
 
 ' John Adams, Works (edition of 1850-1856) II, p. 144. 
 
 ' Gordon assigns a very early date for this practice. He says, " More 
 than fifty years ago," (from 1774) " Mr. Samuel Adams' father and twenty 
 others, one or two from the north end of the town, where all ship business is 
 carried on, used to meet, make a caucus and lay their plan for introducing 
 certain persons into places of trust and power. When they had settled it, 
 they separated, and used each their particular influence within his own circle. 
 He and his friends would furnish themselves with ballots, including the 
 names of the parties fixed upon, which they distributed on the days of elec- 
 tion. By acting in concert, together with a careful and extensive distribution 
 of ballots, they generally carried the elections to their own mind. In like 
 manner it was, that Mr. Samuel Adams first became a representative for 
 Boston." History of the American Revolution, vol. i, p. 365, note. 
 
 ' Richard Frothingham, Life and Times of Joseph Warren, pp. 238-240. 
 
76 MASSACHUSETTS GOVERNMENT 
 
 Development of Nominating Methods 
 
 Although Massachusetts took the lead in so many politi- 
 cal events she was behind other States, and notably Penn- 
 sylvania, in the adoption of a system for nominating candi- 
 dates. Men at first were put in nomination by letters to the 
 newspapers signed " An Elector," " A Citizen," etc. The 
 lack of party organization led to a multiplicity of candi- 
 dates. Governors and Lieutenant-Governors during the 
 early period after the adoption of the Constitution were 
 nominated by a meeting of party voters of the State held at 
 some principal city. As the travelling was difl&cult, few 
 attended, and consequently the nominating power fell on the 
 shoulders of a handful of people. 
 
 This was practically a caucus. The next development 
 from that was the usurpation of power by the members of 
 the Legislature. Under the Constitution the Legislature 
 was empowered to elect the State officers other than Gover- 
 nor and Lieutenant-Governor, and in case of the failure 
 of any candidate for these executive positions to obtain a 
 clear majority, the Legislature made the choice, though by 
 a dififerent procedure. The legislators of both parties, ac- 
 cordingly, took into their hands the powers of a convention 
 and held regular caucuses at the State House to nominate 
 their party tickets. This system we find firmly established 
 by 1800. As communication became easier, however, the 
 people took over these matters themselves, clipping the 
 legislators of their power, and the convention system, with 
 delegates elected from different parts of the State, took the 
 place of the legislative caucus. The Democrats adopted 
 the State Convention by 1828, the Whigs by 1840. 
 
 This development of methods of nomination in the State 
 followed almost chronologically the succession of steps in the 
 
THE GOVERNOR 77 
 
 development of nominating machinery in the nation. There 
 we find the nominations of the two parties for President after 
 Washington being made by caucus of the representatives in 
 Congress. This method gradually came into disrepute and 
 its doom was sealed by the Adams- Jackson-Clay and Craw- 
 ford contest of 1824. Then arose the system of having 
 State Legislatures nominate candidates for President and 
 finally that plan was repudiated and the method of nomina- 
 tion by a national convention consisting of delegates from 
 each State was adopted.^ 
 
 Confidence in party government grew until it became 
 almost a fetish. The issues engendered by the Civil War 
 added tremendously to its vitality. Even today, though 
 party ties are no longer felt to be so binding, an independent 
 candidacy has little chance of success. If a man with the 
 popularity, prestige and accomplishments of Theodore 
 Roosevelt could not succeed in winning an election without 
 the nomination of one of the two great parties, no one could 
 do so. And Mr. Foss, who had been thrice Governor in 
 Massachusetts, received as an independent candidate 
 scarcely a tenth of his former vote. Nevertheless, a distinct 
 public sentiment favored more independence in nomination 
 than was supposed to exist under the system of convention 
 nominations. Too much control was thought to rest in the 
 hands of a few party bosses. It has been in recognition of 
 this opinion that legislation providing for nomination of 
 candidates by filing a petition signed by a certain number 
 of voters and for a general primary has been adopted. The 
 Western States were the first to experiment with the 
 scheme. Massachusetts, after trying this system of direct 
 primary nominations on a small scale in various municipali- 
 ties, finally bowed to public opinion and in 191 1 adopted 
 1 F. W. Dallinger, Nominations for Elective Office, Chap. I. 
 
78 MASSACHUSETTS GOVERNMENT 
 
 this plan for all State offices. It is too early to tell whether 
 or not it is better than the old plan of having delegates, 
 pledged or unpledged, nominate in a convention. The 
 party convention now meets merely to hear speeches and 
 draw up a platform, and its functions are apt to be too per- 
 functory and monotonous to attract the ablest men. 
 
 Whether it is easier to get a nomination under the new 
 system I have grave doubts. Whether the system is a fairer 
 one, remains to be proved. It certainly gives an advantage 
 to the candidate with the longest purse and that surely is 
 not a recommendation. I have been a candidate for the 
 Republican nomination under both systems, under the old 
 for Lieutenant-Governor, then under the new for Governor. 
 In each case the contest was a hard one. In each case I 
 was successful in obtaining the party's nomination but 
 I think I would have won it under either method. 
 
 The Governor's Duties and Powers 
 
 The Governor is inaugurated in the Representative 
 Chamber in presence of both branches of the Legislature 
 and such guests as he invites. The Lieutenant-Governor and 
 Council are then sworn in, and the Governor proceeds to 
 read his inaugural message to the assembled company. He 
 may send messages to the General Court at any time it is 
 in session. It is not customary for him to appear in person 
 and read these messages. They are carried from the exec- 
 utive office by a secretary who marches down the centre 
 aisle of the chamber with the sergeant-at-arms and delivers 
 the document to the clerk, who reads it. 
 
 The Governor and the Lieutenant-Governor and Council 
 visit the various institutions of the State, the insane asylums 
 hospitals, prisons, schools for the feeble-minded and for the 
 blind. This is always an important if an impleasant duty. 
 
THE GOVERNOR 79 
 
 The duties of a Gkjvemor are manifold. He is the Com- 
 mander-in-Chief of the militia and the State naval forces and 
 can assemble them for the special safety and defence of the 
 Commonwealth. He cannot march them out of the Com- 
 monwealth without their consent or the consent of the Gen- 
 eral Court except to take them to some other part of the 
 State.i He can call the Council together from time to time 
 in his discretion.* He has power with advice of the Council 
 to adjourn or prorogue the General Court when in session to 
 any time the House and Senate may desire,' to caU it to- 
 gether sooner than the time to which it may have been 
 adjourned or prorogued if the welfare of the Commonwealth 
 requires, and may direct the session to be held at some other 
 more convenient place if for any reason danger may arise to 
 the health of members from meeting at the place at which 
 they would have convened. In case of disagreement between 
 the two Houses he may, with the advice of the Council, 
 adjourn or prorogue them not exceeding ninety days.* 
 
 The Governor is given the appointment of all judicial 
 officers,' but the appointment is subject to the consent of the 
 Council and the nomination must be made seven days before 
 appointment. He has the appointment of the adjutant- 
 general * and could appoint the attorney-general, sheriffs and 
 registers of probate imtil these officers were made elective. 
 Judges hold office during good behavior and justices of the 
 peace for seven years. Amendment IV provided that 
 notaries instead of being elected should be appointed for a 
 seven-year term. Judges can only be removed by impeach- 
 ment or on address.' This was originally true of justices of 
 the peace as well and after Amendment IV of notaries, but 
 
 1 ConsliltUion of Massachusetts, Chap. II, § I, Art. VII. 
 
 2 Ibid., Art. IV. " Ibid., Art. IX. 
 » Ibid., Art. V. « Ibid., Art. X. 
 
 * Ibid., Art. VI. ' See above, p. 32. 
 
8o MASSACHUSETTS GOVERNMENT 
 
 Amendment XXXVII provided that justices of the peace 
 and notaries might be removed by the Governor and Comidl. 
 In the many attempts to gain for women the right to vote 
 and to hold ofl&ce the question has been agitated as to a 
 woman's right to be appointed a justice or a notary. The 
 opinion of the judges was asked in 187 1 as to a woman's serv- 
 ing as a justice and they answered in the negative because 
 at the time the Constitution was adopted it was universally 
 understood that a woman could not be appointed to a judi- 
 cial office and this had been the accepted construction 
 of the Constitution since; ' Hkewise in 1890 they answered 
 in the same tenor the question as to the eUgibiUty of a 
 woman as a notary.^ A statute was subsequently passed 
 allowing a woman to be a special commissioner, and giving 
 such commissioners practically the power of justices of the 
 peace. This was a clever move to dodge the issue. In 1913 
 the question of allowing women to be notaries was sub- 
 mitted to the people in the form of a constitutional amend- 
 ment, but the people defeated it. 
 
 The Power of Appointment and Removal 
 
 Originally, militia officers could only be removed by 
 court martial or address* but Article IV of the Amendments 
 provided that the Legislature should prescribe for the ap- 
 pointing of the commissary-general and for removing all 
 commissioned officers. If the Legislature prescribes a 
 definite term of office for an adjutant-general the Governor 
 caimot remove him within that time.* Article IV of Chapter 
 I, Section I, gave the Legislature the power to provide for 
 the appointment of all civil officers not provided for in the 
 Constitution. Thus, as various offices, heads of departments 
 
 1 107 Mass., 604. ' 150 Mass., 586. 
 
 ' Constittttum of MassachiiseUs, Cha,p.ll,^I,Ait.X. * 2i6Mass.,6os. 
 
TEE GOVERNOR 8 1 
 
 and boards and commissions have been established, the 
 Governor has been given the power of appointment subject 
 as a rule to confirmation by the Council, and the length of 
 their tenure and method of removal has been established. 
 
 Originally, the secretary, treasurer and receiver-general, 
 the commissary-general, notaries public and naval officers, 
 were chosen aimually by joint ballot of the senators and 
 representatives.! The first change in the Constitution 
 affecting these officers came in 1820 when Article IV of the 
 Amendments provided that vacancies in the office of secre- 
 tary and of treasurer occurring during the recess of the 
 General Court should be filled by the Governor and Council 
 and should hold good until the legislators met and appointed 
 some one. In 1855 ^ another amendment was adopted by 
 which these officers were to be elected by the people, along 
 with the auditor, whose office had been established in 1849 ' 
 and the attorney-general who had originally been appointed 
 by the Governor,* and in case of vacancy the General Court 
 to fill the vacancy by joint ballot if in session, and if not in 
 session then the Governor with consent of the Council to 
 appoint. 
 
 The Veto Power 
 
 The Governor must sign all warrants for the issuance of 
 money from the treasury and all commissions of appoint- 
 ment with consent of the Council.* He has a veto over all 
 bills passed by the Legislature but this can be over-ridden 
 by a two-thirds vote of each House. Does this mean two- 
 
 1 Constitution of Massachusetts, Chap. II, § IV, Art. I. 
 
 * Article of Amendment XVII. See the Remsed Laws, Chaps. V and VI, 
 for the duties of these officers. 
 
 > Chapter 56 of the Acts of 1849 provided for an Auditor to be chosen by 
 joint ballot of the Legislature. 
 
 * Constitution of Massachusetts, Chap. II, § I, Art. IX. 
 ' 211 Mass., 632. 
 
82 MASSACHUSETTS GOVERNMENT 
 
 thirds of the actual membership of these bodies or merely 
 two-thirds of those present and voting ? The Constitution 
 says clearly that it must be two-thirds of the members pre- 
 sent in the second chamber. Rulings of presiding officers of 
 the House and Senate have held that it means those present 
 in both cases and authorities support this position. There 
 is also, however, some authority the other way.' 
 
 The original draft of the Constitution provided for an 
 absolute veto, but the Convention rejected this clause and 
 substituted the two-thirds provision. The Governor is 
 allowed five days after a bill or resolve has been laid before 
 him in which to veto it. If he vetoes a measure and the 
 General Court adjourns within five days, thereby prevent- 
 ing him from returning it with his objections to the House 
 where it originated, the measure does not become a law.^ 
 There is no duty imposed on the Governor to return it when 
 the Legislature reconvenes. The measure has become abso- 
 lutely void.' A veto sent in while the Governor is out of the 
 Commonwealth, but at his order and dictated by him before 
 leaving, is vahd.^ A measure sent from the House or Senate 
 to the Secretary of State cannot be held to have been laid 
 before the Governor.^ Presentation of a measure at the 
 office of the Governor in presence of the person in charge is 
 sufficient though the Governor is absent.* Many other 
 interesting questions occur to us in connection with this 
 veto provision. For instance, do the five days refer to days 
 on which the Legislature sits or are all days included ? If 
 so, do holidays and Sundays count ? ■ 
 
 ' See the rulings as printed in the Manual for the General Court. 
 
 ^ Article of Amendment I. 
 
 ' 2S4 Vroom {N. J.), 303. 
 
 ' Opinions of the Judges, 135 Mass., 594. 
 
 ^ Ibid., 99 Mass., 636. 
 
 « Ibid., 45 N. H., 607. 
 
THE GOVERNOR 83 
 
 There have been rulings by the Massachusetts Supreme 
 Judicial Court in adjudicated cases and in ex parte opinions 
 which throw some light on the subject. Probably legis- 
 lative days alone count to make up the five days allowed 
 for a veto and not calendar days,' and (in 112 Mass., 59) 
 Justice Morton said: " When a Statute fixes a limitation 
 of time within which a particular act may or may not be 
 done, if the time limited exceeds a week, Sunday is included 
 in the computation; but if it is less than a week, Sunday is 
 excluded. This is the established rule of interpretation in 
 this State." 
 
 The power of veto is a high and important prerogative. 
 It cannot be delegated. It must be performed strictly 
 according to the provisions of the Constitution. Thus a 
 veto message left on the fifth day upon the desk of the clerk 
 of the branch of the Legislature in which the biU originated, 
 but after the session is over for the day and the office of the 
 clerk has been closed in the ordinary course of business and 
 he and his assistants have gone, is not vaHd.'' 
 
 This is a very interesting subject and one might weave 
 suppositious cases around it for an indefinite time, but there 
 are other important powers placed on the shoulders of the 
 chief executive and we must pass on to them. 
 
 The Right to Require Judicial Opinions 
 
 Among the unusual provisions in the Constitution of 
 Massachusetts is the right given the Governor and Council 
 to require opinions of the justices of the Supreme Judicial 
 Court. They are given that authority and so is each branch 
 of the Legislature.* This Article was suggested by the prac- 
 
 1 opinions of the Judges, 3 Mass., 567. 
 
 2 Tuttle V. Boston, 215 Mass., 57, and cases cited. 
 
 •> Constitution of Massachusetts, Chap. Ill, Art. II. A few other states 
 have this provision, for example, Colorado, New Hampshire, Maine and 
 
84 MASSACHUSETTS GOVERNMENT 
 
 tice under the English Constitution allowing the King and 
 Lords to demand the opinion of the twelve judges of Eng- 
 land.' The authority being given to the Governor and 
 Council, the Governor alone cannot require an opinion.^ 
 Nor, for the same reason, can the Council, acting alone, re- 
 quire one. These opinions, moreover, may be asked only on 
 important questions of law and on solemn occasions.' The 
 framers of the Constitution did not mean to have the judges 
 called upon to answer indiscriminate questions. Thus the 
 Court has held that this clause of the Constitution does not 
 apply to questions of fact * and that it applies to questions of 
 law only when such questions are actually before the body 
 asking the opinion.' As the Court says: " The opinion of 
 the Justices can be required only upon 'important ques- 
 tions of law ' not upon questions of fact ' and upon solemn 
 occasions ' : that is to say, when such questions of law are 
 necessary to be determined by the body making the inquiry, 
 in the exercise of the legislative or executive power entrusted 
 to it by the Constitution and laws of the Commonwealth." ' 
 In giving opinions the judges act not as a Court but as 
 advisers. They are not bound by their opinion if the ques- 
 tion comes up later in actual litigation. Consequently 
 opinions are given by them with more freedom as individuals 
 and there is less restraint against filing dissenting opinions.' 
 
 Rhode Island. Questions may be submitted by the Governor on matters 
 affecting the State Constitution, in Florida, and on important questions of 
 law, in South Dakota. (Stimson, Federal and State Constitutions, § 652.) 
 ' opinions of the Judges, 126 Mass., 561. 
 
 * Ibid., 214 Mass., 602. 
 ' Ibid., 211 Mass., 630. 
 
 * Ibid., 120 Mass., 600. 
 
 ' Ibid., 148 Mass., 623; 150 Mass., 598; and 217 Mass., 607. 
 ' Ibid., 126 Mass., 566. 
 ' Ibid., 214 Mass., 599. 
 
TEE GOVERNOR 85 
 
 The Power of Pabdon 
 
 The Governor has the power of pardoning offenses by and 
 with the advice of the Council. The Governor alone cannot 
 pardon, nor can the Council. Favorable action by both is 
 requisite and the initiative must come from the Governor 
 as the Council can only get jurisdiction over a petition for 
 pardon if sent to it by him.^ The powers of the two are well 
 expressed by the Court in an important decision.' " As to 
 this class of cases, where the Constitution declares that the 
 power to act is in the Governor, or that the act may be done 
 by the Governor, ' by and with the advice of council,' or 
 ' by and with the advice and consent of the council,' we are 
 of opinion that the responsibility rests primarily upon the 
 Governor to determine, as the supreme executive magis- 
 trate, whether any action is called for, and what action, if 
 any, is desirable; and that the provision for advice of the 
 Council is a requirement that their approval and concur- 
 rence shall accompany the afl&rmative act and enter into it 
 before it becomes complete and effective. We do not think 
 that these different phrases used in different parts of the 
 Constitution, namely, ' by and with the advice of council,' 
 ' by and with the advice and consent of the coimcil,' ' Avith 
 the advice and consent of the council,' ' with advice of 
 council,' and ' with advice of the council,' differ at all in 
 legal effect. They all recognize the fact that the act, first 
 of all, and afterwards for all time, is to be the act of the 
 Governor." 
 
 The power of pardon does not extend to persons convicted 
 by impeachment. Nor will a pardon granted after commis- 
 sion of an offense but before conviction, be valid.^ 
 
 ' 190 Mass., 616. ^ 109 Mass., 323. 
 
86 MASSACHUSETTS GOVERNMENT 
 
 The Power of Extradition 
 
 There are certain other privileges connected with the 
 ofl&ce of the chief executive which, though not covered in 
 the State Constitution, are well recognized and important 
 powers. Among these, the power of extradition is of great 
 importance. This authority to return a fugitive from justice 
 to the State that demands him is governed by a clause in the 
 United States Constitution,iby federal Statute and by comity 
 between the different States. The Revised Statutes of the 
 United States, (Section 5278), provide: "Whenever the 
 Executive authority of any State or Territory demands any 
 person as a fugitive from justice, of the executive authority 
 of any State or Territory to which such person has fled, and 
 produces a copy of an indictment found or an affidavit made 
 before a magistrate of any State or Territory, charging the 
 person demanded with having committed treason, felony, 
 or other crime, certified as authentic by the Governor or 
 chief magistrate of the State or Territory from whence the 
 person so charged has fled it shall be the duty of said execu- 
 tive to cause the person demanded to be arrested etc." 
 
 There is, however, no way of enforcing extradition if the 
 Gk)vemor of the State refuses to grant it. 
 
 An indictment is necessary or a complaint setting forth 
 the facts and accompanied by an affidavit. Generally 
 speaking, it is necessary to show that the offense charged is 
 a crime in the demanding State, that the accused was there 
 at the time the crime was committed, and that he is now in 
 Massachusetts.'' In other words, that the person demanded 
 has been substantially charged with a crime and is a fugi- 
 tive from justice.' 
 
 ' Constitution of the United States, Art. IV, § 2. 
 ' Report of the Attorney-General, 1912, p. 220. 
 ' 196 United States, 372. 
 
THE GOVERNOR 87 
 
 Though a State can lay down additional provisions and 
 regulations applying to a petition for the rendition of a 
 prisoner from another State, it cannot hold any other State 
 subject to those conditions provided the general rules above 
 stated have been complied with. An Attorney-General of 
 Massachusetts has held that " extradition papers from a 
 foreign State which comply with the laws of the United 
 States and also with the Statutes of the demanding State, 
 are sufficient to authorize the Governor to surrender the 
 fugitive demanded although said papers do not comply 
 with the Massachusetts statute requiring affidavits by per- 
 sons having actual knowledge of the offence charged." ' 
 
 As a result of an interstate extradition conference held 
 in New York in 1887, the States adopted certain rules of pro- 
 cedure to govern in extradition cases. Under these rules 
 the rights of any person who is held for extradition may be 
 safeguarded by suing out a writ of habeas corpus. This pro- 
 ceeding was followed in the recent Thaw case in New Hamp- 
 shire. 
 
 The Governor Not Subject to Mandamus 
 
 So far we have been discussing the powers of the chief 
 executive to perform certain acts. Let us for a moment 
 consider the matter from the other point of view. Suppose 
 he refuses to perform his duties or some particular one. Is 
 there any way of compelling him to take action ? In some 
 States of the Union, the courts hold that a writ of mandamus 
 may be issued to compel a Governor or other public officer to 
 perform a particular act, provided it is purely ministerial, 
 requiring no discretion, whereas it is well established that 
 such a writ will not issue where the exercise of discretion or 
 judgment is required. In Massachusetts it has been decided 
 
 ' opinions of the Attorney-General, vol. i, 1891-98, p. 116. 
 
88 MASSACHUSETTS GOVERNMENT 
 
 that a writ of mandamus will not be issued against the 
 Gk)vemor to compel him to perform any of his ofl&cial duties. 
 This is according to the weight of authority. The court 
 says: " It seems better to hold that, for whatever he does 
 oflScially, the Governor shall answer only to his own con- 
 science, to the people who elected him, and in case of the 
 possible commission of a high crime or misdemeanor, to a 
 court of impeachment." ' 
 
 Incompatibility of Offices 
 
 No Governor or Lieutenant-Governor may hold any other 
 office under the Commonwealth or receive any pension or 
 salary from any other State or government.' This makes 
 it illegal for the Gk)vernor or Lieutenant-Gk)vernor to hold 
 even the office of justice of the peace or notary public, or 
 to act as counsel on a salary for any other government or to 
 hold any other inconsistent offices of this nature.' 
 
 State Laws and Treaty Obligations 
 
 There is one other subject to which I want to refer briefly 
 before closing this chapter. It is of peculiar importance at 
 the present time when the recent discussion about Cali- 
 fornia's excluding the Japanese from rights enjoyed by other 
 aliens, is ringing in our ears. This is the question of State 
 laws being subordinate to treaty rights. It is of course one 
 belonging to the field of constitutional law and any complete 
 discussion of it must be left to books on that general subject. 
 There one can find a presentation of possible hmitations on 
 treaty-making powers, of whether matters can be legally 
 included in treaties which would be unconstitutional if 
 
 ' 207 Mass., 577. 
 
 '' Constitution of Massachusetts, Chap. VI, Art. II. 
 
 ' 123 Mass., 525. 
 
THE GOVERNOR 89 
 
 dealt with by Congress, of how far States can go in passing 
 infringing legislation, and other matters germane to this sub- 
 ject. Suffice it to say here that it is imquestioned that when 
 the law of a State covering subject matters not reserved to 
 the States conflicts with a treaty made by the United States, 
 the latter is supreme. 
 
 The same is probably true of a State law covering a matter 
 ordinarily reserved for State legislation. As Professor 
 Willoughby says: " The author is convinced that the obiter 
 doctrine that the reserved rights of the States may never be 
 infringed upon by the treaty-making power will sooner or 
 later be frankly repudiated by the Supreme Court. In its 
 place will be definitely stated the doctrine that in all that 
 properly relates to international rights and obKgations, 
 whether these rights and obligations rest upon the general 
 principles of international law or have been conventionally 
 created by specific treaties, the United States possesses all 
 the powers of a constitutionally centralized sovereign State; 
 and, therefore, when the necessity from the international 
 standpoint arises the treaty-making power may be exer- 
 cised, even though thereby the rights ordinarily reserved to 
 the States are invaded." ^ 
 
 A recent decision in Massachusetts states distinctly that 
 where the provisions of a treaty conflict with the State law 
 or the Constitution of the State, the treaty is supreme.^ 
 
 1 Constitutional Law of the United States (Students' Ed.), p. 173. 
 
 2 191 Mass., 278. 
 
CHAPTER VII 
 
 LEGISLATIVE PROCEDURE 
 
 To become law a measure has to pass through three read- 
 ings in each branch of the Legislature; it must be engrossed 
 and enacted in each, and then must be signed by the Gover- 
 nor, or left for five days without his signature, or vetoed 
 within the required period and passed over his veto. 
 
 Filing Petitions and Bills 
 
 When one looks at the Massachusetts " blue books " 
 which are issued yearly with their mass of laws general and 
 special, one seldom pauses to reflect on the hearings, de- 
 bates, readings and contests which must have taken place, 
 and upon the general machinery that had to be set in motion 
 before these matters were in shape to be put in the statute 
 book. The fact that the Legislature sits for many months 
 each year and steadily grinds out laws, is of course common 
 knowledge. But if the average citizen wanted to get an 
 idea enacted into law, would he know how to go about it ? 
 He would probably consult a lawyer. This lawyer would 
 undoubtedly know the method of procedure by which to set 
 the ball roUing, but unless he had been at some time in the 
 State government or had special experience with legislation 
 he would scarcely know how to draw a bill and its accom- 
 panying petition in scientific form. For instance, very few 
 realize the value of making the petition as broad as possible. 
 Since each petition must, under the rules, be accompanied by 
 a bill, the phrase commonly used in a petition is to ask " for 
 legislation according to the accompanying bill." Generally 
 
LEGISLATIVE PROCEDURE 9 1 
 
 speaking, nothing could be more unwise than this. Events 
 will undoubtedly occur making it desirable to amend the 
 bill. If it is desired to cut out some of its provisions or to 
 limit its scope well and good; the petition will be broad 
 enough for that. But if, as is more often the case, it is 
 sought to enlarge the bill's scope and to increase its require- 
 ments, then one bimips right up against the limited wording 
 of the petition. It is true, of course, that many bills are 
 reported by committees and go through both branches de- 
 spite the fact that they contain provisions which are beyond 
 the scope of the petitions originally accompanying them. 
 But this is either because of inadvertence or because the bill 
 is so unimportant that no opposition to it develops. 
 
 A point of order, moreover, cannot be upheld on this score 
 after a measure has reached a certain stage. This is true, for 
 instance, if the bill has gone to a third reading * or been sub- 
 stituted for the adverse report of a committee '^ or passed 
 through the other branch of the Legislature.' These rulings 
 are based on the theory that the discrepancy has been rati- 
 fied by the action of the legislators and though in the last 
 case the ratification is by the members of the other house, 
 courtesy between the two branches governs. 
 
 Petitions Should be Broad in Scope 
 
 A bill broader than the scope of a petition may be saved 
 from an adverse ruling (i) by another petition which hap- 
 pens to be before the committee, or (2) by some clause in a 
 message of the Governor or in the report of some State 
 officer or department or board, on which it can be based. It 
 
 » " Notes of Rulings on the House Rules," Rule 30, U 2. These " Notes of 
 Rulings " are printed in the Manual for the General Court. 
 * Ibid., Rule 47, ITs- 
 3 " Notes of Rulings on the Senate Rules," Rule 23, and citations. 
 
92 MASSACHUSETTS GOVERNMENT 
 
 is not well to trust to luck in these matters, however. All 
 difficulties can be best obviated by framing the petition 
 broadly. Thus if one wants to have a law passed increasing 
 the niunber of judges petition " for legislation relating to the 
 judiciary " and your bill can then be framed or amended at 
 will to cover the number of judges, their powers, duties or 
 anything else. It need not even be limited to any particular 
 court. Any legislation relating to judges would be germane 
 to such a petition. 
 
 In the same way, if one wants a law passed increasing the 
 stock of a street railway company or extending its franchise 
 rights in any other manner, there is no need of stating any 
 specific request in the petition. The bill will state specifi- 
 cally what you want; and if the petition merely asks for 
 legislation relative to street railways, then the bill can be 
 amended or expanded at will. 
 
 How Bills ake Introduced 
 
 There are several ways of getting proposed legislation 
 before the two Houses. The most common is by filing with 
 the clerk of the Senate or with the clerk of the House a peti- 
 tion accompanied by a bill. Another way is to have a bill 
 introduced on leave. This means that the petitioner is a 
 member of the General Court and he asks leave to introduce 
 the bill. It is a purely formal matter, the presiding officer 
 merely stating the fact that the Senator from such and such 
 a coimty, or that Representative so and so, asks leave to in- 
 troduce the following bill, and then the clerk reads the title 
 of the bill, the vote on granting leave being taken as a per- 
 functory matter during routine business at the opening of 
 the day's session. 
 
 In the case of a petition accompanied by a bill the petition 
 must be signed by some citizen of the Commonwealth, and 
 
LEGISLATIVE PROCEDURE 93 
 
 not necessarily by a legislator; but before being read in 
 either legislative hall it must be endorsed on the outside as 
 being presented by some member of the House or Senate. 
 This does not mean that the member of the House or Senate 
 advocates the passage of the biU, as it does in the case of a 
 measure introduced on leave; it is merely an endorsement 
 required by the rules of procedure in Massachusetts. I 
 remember during one of the years when I was Speaker of the 
 House of Representatives a petition was handed to the clerk 
 for the impeachment of a certain judge. The clerk brought 
 it in his tin box to the desk and said he could not get any 
 Representative to permit the endorsement of his name to it; 
 so the paper lay there day after day and as no member of the 
 House was ever secured to attach his name to it, the meas- 
 ure was never introduced. 
 
 A third way of getting a bill before the Legislature is for 
 a member to rise and move that a certain matter be taken 
 from the files. This means that every year certain matters 
 are " referred to the next General Court," and when in the 
 following year a member rises and asks to have a measure 
 taken from the files he refers to one of these. The motion is 
 put and carried as a matter of course, as nobody ever raises 
 an objection. 
 
 Any of these three methods, when used, must be initiated 
 before five o'clock in the afternoon of the second Saturday 
 of the session. Petitions or bills coming in after that time go 
 under the rules to the next General Court.^ This rule can be 
 suspended only by a four-fifths vote of members of each 
 branch present and voting, and where the petition is not 
 accompanied by a bill or resolve embodying the legislation 
 requested it requires unanimous consent to suspend the 
 
 ' Joint Rules of the Senate and House of Representatives, Rule 12. 
 These are also printed in the Manual for the General Court. 
 
94 MASSACHUSETTS GOVERNMENT 
 
 rule. The rule does not apply to petitions in support of 
 legislation or remonstrances against legislation already 
 pending, nor in certain other cases of an unusual nature. 
 Nor does it apply to what I shall call a fourth method of 
 getting laws passed. This is to base legislative proposals on 
 some recommendation in a message of the Governor, or 
 some report of one of the State ofl&cers, or of one of the 
 boards or commissions or departments of the State, or of a 
 committee or commission that has been appointed to sit and 
 report to the General Court. Recommendations contained 
 in a message or in the reports of these departments, boards 
 or commissions, form a basis on which a bill or resolve can be 
 put before the Legislature by the committee to which these 
 documents are referred. These reports are supposed to be 
 on hand when the Legislature meets, but they very seldom 
 get in imtil some time later, and of course the Governor can 
 send in a message at any time during the session. 
 
 The Committee on Rules 
 
 Requests for legislation under the first three methods 
 coming in after five o'clock of the second Saturday are re- 
 ferred under the rule to the Committee on Rules. This 
 committee sits and hears the reasons why the proposals for 
 legislation were not filed in time. If the excuse seems suffi- 
 cient or the matter is of great importance the committee 
 may vote to recommend suspension of the rules, and the 
 House or Senate, whichever branch it may be that has the 
 question under consideration, usually follows such report. 
 
 Motions to suspend the ninth Joint Rule must also go to 
 the Committee on Rules. The ninth Joint Rule provides 
 that petitions asking for certain legislation Hke the incor- 
 poration of a town or city, of a railroad or street railway, 
 canal or company for building structures over navigable 
 
LEGISLATIVE PROCEDURE 95 
 
 waters, or the incorporation of an educational institution, 
 shall, unless notice required by Chapter III of the Revised 
 Laws or other laws has been given, be referred to the next 
 General Court. 
 
 The Rules Committee of the House does not have the 
 broad discretion to recommend suspension of this rule that 
 it does in the case of the twelfth Joint Rule. It must report 
 adversely on the suspension of the ninth Joint Rule ' unless 
 the members are satisfied by the evidence produced that the 
 petitioners have given notice by public advertisement or 
 otherwise, equivalent to that required by Chapter III of the 
 Revised Laws.^ The Senate Rules contain no such provision 
 as this. 
 
 The Committee on Rules is a powerful body. The presid- 
 ing oflScer of each branch sits in that branch as chairman of 
 the Committee and the leading members of the Senate and 
 House make up its membership. Many other matters be- 
 sides motions to suspend the ninth and twelfth Joint Rules 
 go to it under the rules. Thus all orders authorizing com- 
 mittees to travel or to employ stenographers, or involving 
 special investigations, or providing that information be 
 transmitted, must be referred without debate to the Com- 
 mittee on Rules, and the Committee on Rules must report 
 upon such matters within fourteen days.'' 
 
 The Joint Rules also provide that where legislation affects 
 the rights of individuals, or of private or municipal corpora- 
 tions otherwise than as it affects generally the people of the 
 Commonwealth or the people of the city or town to which it 
 applies, a petition is always necessary to introduce such 
 matter, and that no bill or resolve shall be reported on such 
 
 ' Also House Rule 32 and Senate Rule 25 which contain provisions similar 
 to Joint Rule 9. 
 ' House Rule 104. 
 
96 MASSACHUSETTS GOVERNMENT 
 
 petition until the Committee is satisfied that proper notice 
 has been given to all parties by public advertisement or 
 otherwise, or that all parties interested have waived notice 
 in writing. Objection to the violation of this rule may be 
 made at any stage prior to the third reading.' 
 
 The Reference of Bills to Committees 
 
 All bills and resolves, except " money bills " about which 
 there is a special provision that they must originate in the 
 House of Representatives,'' annual and special reports and 
 other requests for legislation, may start in either the House 
 or the Senate; but reports or legislation based on them 
 have to go sooner or later to both branches. They are first 
 entered on a docket by the clerks of the branch receiving 
 them, and arranged neatly; then they are brought in by the 
 clerks in a tin box to the Senate or House as the case may 
 be, and handed to the President of the Senate or to the 
 Speaker, who, after reading out the titles of the various bills, 
 refer them to whatever committee is deemed the appropriate 
 one to consider each of them. Generally speaking, there 
 is no objection to the off-hand assignment of these bills as 
 made by the President or by the Speaker. Matters relating 
 to street railways go naturally to the street railway com- 
 mittee, and those relating to taxation to the committee on 
 taxation, and it is usually too clear for argiunent which 
 committee should have jurisdiction. 
 
 But now and then matters arise which might appro- 
 priately be sent to either of two committees, and if they are 
 of importance, and if the sponsors of the bill particularly 
 desire reference to a certain committee, there may be a dis- 
 cussion and contest as to what committee should have it. 
 In such event the assignment made by the presiding ofiicer 
 1 Joint Rule 8. 2 Joint Rule 4. 
 
LEGISLATIVE PROCEDURE 97 
 
 is contested from the floor and may possibly be overruled by 
 a majority of the members present. After the matters have 
 been referred to committees they are duly placed upon the 
 committee dockets and advertised for hearings. 
 
 How Legislative Committees are Selected 
 
 In Massachusetts committees are appointed by the presid- 
 ing officers, — in the Senate by the President of the Senate, 
 and in the House by the Speaker of the House. The Senator 
 or Representative first named on each committee acts as 
 chairman. In the case of Joint Committees the Senator 
 first named is the chairman. Clerks are elected by the com- 
 mittees from their own members, and these clerks, after con- 
 sulting with the chairman, attend to arranging dates for 
 the hearings and advertising in the newspapers matters to 
 be heard. Committees are announced by the presiding 
 officers just as soon as the bodies are organized by the election 
 of officers. When I first went to the Legislature, however, 
 in 1901, committees were often not announced for a week or 
 ten days, but it soon became customary to announce com- 
 mittees the first day. 
 
 Each branch has besides a presiding officer and clerk, a 
 chaplain. He like the others is nominated in party caucus 
 and elected by the members. As a rule the nominees of the 
 Repubhcan caucus are elected, Republicans being in the 
 majority. The sergeant-at-arms is elected by concurrent 
 vote, he being an officer of both branches. The clerk of each 
 branch appoints his assistants and so does the sergeant-at- 
 arms. In the roster of assistants to the sergeant-at-arms are 
 included watchmen, elevator men, pages, door-keepers, and 
 so on. Hence he has a great deal of patronage and as the 
 civil service rules do not apply to these appointments the 
 sergeant-at-arms is a powerful man. 
 
98 MASSACHUSETTS GOVERNMENT 
 
 The Speaker of the House appoints also eight monitors, 
 two for each of the four divisions of the House, one Demo- 
 crat and one Republican in each division. These men, 
 when a standing vote is taken, count the members that rise 
 in favor and those that rise against the proposition, and 
 announce the result, which is tabulated by the clerk and 
 handed to the Speaker. In the Senate no monitors are ap- 
 pointed, because the membership is so small it is quite pos- 
 sible for the clerk to make the count. 
 
 Standing and Joint Standing Committees 
 
 There are standing committees of the Senate and standing 
 committees of the House as well as joint standing com- 
 mittees of the two bodies. The standing committees of the 
 Senate are those on Judiciary, on Ways and Means, on Bills 
 in the Third Reading, on Engrossed Bills, and on Rules. 
 The standing committees of the House include committees 
 covering these subjects and also a committee on Elections 
 and one on Payroll. The Senate Committees are smaller 
 than the House Committees, though in each branch the 
 committees on Bills in the Third Reading and on Engrossed 
 Bills consist of only three members. In the House the chair- 
 men of the committees on Bills in the Third Reading and on 
 Engrossed Bills have seats of honor at a desk at the left of 
 the Speaker, the clerk and his assistant being at the right. 
 Certain members, too, like the chairman of the Judiciary 
 Committee, the chairman of the Ways and Means Com- 
 mittee, and the ranking member of the Rules Committee, 
 have special seats assigned to them. So do the monitors. 
 The senior member of the House and the oldest member 
 who is not the senior member are allowed to select their 
 seats. All the other members draw for seats,* the clerk 
 
 > In the Senate the President appoints a cnnunittee to assign seats. 
 
LEGISLATIVE PROCEDURE 99 
 
 calling the roll, and a committee of three made up from those 
 who do not have to draw taking nimibers out of a box as 
 the names are called; the number drawn is the number of 
 the member's seat unless an exchange is made and notice 
 given to the sergeant-at-arms within five days from the day 
 of the drawing. The drawing of seats takes place immedi- 
 ately after the appointment of committees and monitors. 
 
 Work of the Joint Committees 
 
 The greater number of committees, of course, are joint 
 committees; that is, committees made up of members of the 
 House and Senate who sit jointly. There are twenty-nine 
 of these committees in all and they start with a committee 
 on Agriculture made up of three senators, the senator first 
 named being the chairman of the whole cormnittee, and 
 eight representatives. The chairman on the part of the 
 House is the representative first named among the House 
 members. These committees include committees on the 
 various appropriate subjects, sometimes consisting of eight 
 men and sometimes in the case of busy and important com- 
 mittees — like the committees on Cities, on Insurance, on 
 Legal Affairs, on Mercantile Affairs, on Metropolitan Af- 
 fairs, on Public Institutions, on Public Lighting, on Rail- 
 roads, on Street Railways, — of fifteen, and in the case of 
 the two busiest, the joint committee on Ways and Means 
 and on Judiciary, of sixteen. 
 
 Most of the business, naturally, is done by these joint 
 standing committees and not by the standing committees 
 of the separate branches. The committees on Rules and 
 on Ways and Means seldom sit jointly. The committee 
 on the Judiciary almost always sits jointly.* The House 
 committees on Payroll and on Elections do not sit jointly 
 ' See Joint Rule i. 
 
lOO MASSACHUSETTS GOVERNMENT 
 
 with any committees of the Senate as each branch has 
 jurisdiction only over its own membership in such matters. 
 The same is true of the committees on Engrossed Bills 
 and on Bills in the Third Reading, as they have jurisdiction 
 only over bills which have gone to engrossment or to a 
 third reading in the branch in which they sit. 
 
 We have already noted that the Senate has no standing 
 committees on Elections or on Payroll and that the House 
 does have such committees. In the Senate it has been cus- 
 tomary for the chairman of the Ways and Means Committee 
 to present an order for the payroll, to be made up by the 
 clerk. This procedure makes a committee on Payroll 
 unnecessary. The pay of members, both for travelling and 
 salary, is governed by statute; the provision as to travel is 
 that each member receives two dollars a mile. Only one 
 journey to and from the State House is computed. Boston, 
 however, is regarded as being five miles from the State 
 House and every Boston member gets $io, while representa- 
 tives from North Adams at the farther end of the State 
 receive mileage amounting to a substantial sum. The 
 salary of each member of the House and Senate is fixed at 
 $i,ooo, the presiding officer in each branch receiving $2,000. 
 In case of a disputed election in the Senate, as there is no 
 standing committee on Elections, a special committee is 
 appointed to deal with the matter. 
 
 Consideration of Measures by Committees 
 
 We have now seen how a bill is introduced and how it gets 
 to a committee, as well as how the committees are made up. 
 But before proceeding any further into a discussion of the 
 rules, we must, to follow the passage of a measure properly, 
 find what becomes of it after it has been referred to a com- 
 mittee. 
 
LEGISLATIVE PROCEDURE lOI 
 
 If a committee to which a bill has been referred thinks it 
 ought not to have the measure because some other com- 
 mittee can deal with it better or more appropriately or be- 
 cause such other committee has measures of a similar nature 
 before it, the first committee may by vote ask to be dis- 
 charged and the matter may be referred to another com- 
 mittee. 
 
 Let us assume the usual proceeding, however, where the 
 bill, resolve, message or report is advertised for hearing on 
 a certain date. After the hearing a committee often waits a 
 long time, especially if the measure is an important one, 
 before a vote is taken as to whether or not it should report 
 favorably. If the vote is in favor of reporting a bill or 
 resolve, a certain member of the committee is given charge 
 of the measure. Those members of the committee who so 
 desire may be recorded as dissenters from the report, and of 
 course may fight the passage of the bill when it gets into the 
 branch to which they belong. If the committee votes to 
 report adversely upon a matter a member of the committee 
 is given charge of this adverse report and those who so 
 desire may be recorded as dissenters. They or any other 
 member of the Senate or House may, when the report 
 comes in, move to reject the adverse report and substitute 
 the bill itself for this adverse report. In all cases, however, 
 the measure must come out of the committee and go to 
 either the Senate or the House. 
 
 But let us suppose that no vote is taken by the committee, 
 either because it is difficult to get the members together, or 
 because the measure is unimportant, or because the com- 
 mittee does not wish to take action. What happens under 
 such circumstances ? 
 
 Under the rules prevailing in our national government at 
 Washington, and under the usual rules of procedure of the 
 
102 MASSACHUSETTS GOVERNMENT 
 
 State governments, the measure would stay in committee 
 and thus be quietly killed; in those jurisdictions, unless a 
 committee reports favorably on a measure, it never gets to 
 the House or the Senate except of course when both of those 
 bodies vote to instruct the committee to report the measure, 
 and that is a very imusual proceeding. But in Massa- 
 chusetts everything has to be reported from a committee 
 whether the committee favors it or not; and we thus see 
 one of the chief reasons why the sessions in Massachusetts 
 are so much longer than in most other States. Where mat- 
 ters can be shelved in committee and thus prevented from 
 reaching the legislative body, the bills which the latter has 
 to act on will be naturally fewer and the time taken up in 
 putting them through or in defeating them as well as that 
 spent in lengthy discussions will be cut off. 
 
 In Massachusetts a rule of the Legislature ^ requires 
 committees to report on all matters previously referred to 
 them on or before the second Wednesday in March. This 
 time may be extended until the second Wednesday in April. 
 When that date has expired all measures still in the hands of 
 any committees must be reported within three days by the 
 chairman of the committee representing that branch of the 
 Legislature in which the bills were introduced. The report 
 must recommend that the bills be " referred to the next 
 General Court "; and this rule can be suspended only by a 
 four-fifths vote.* 
 
 Discussion may then take place on the measure and sub- 
 stitution of any bill for the report of the committee may 
 prevail. As such reports are only perfunctory, being required 
 by rule, and are not necessarily indications of the atti- 
 
 ' Joint Rule lo. 
 
 ^ No recommittal of any matter to a committee can take place after the 
 fourth Wednesday in March. Joint Rule 5. 
 
LEGISLATIVE PROCEDURE I03 
 
 tude of the committee, the substitution of bills may often 
 prevail without opposition from the committee. We notice 
 that this rule applies to matters referred to a committee 
 before the second Wednesday in March. If, after that date, 
 a message from the Governor is referred to a committee, or a 
 measure is recommitted, or a report comes to them from a 
 commission, the committee have an unlimited time to report 
 thereon. 
 
 We notice too that this rule requires a report to that 
 branch of the legislature in which the bill originated. In the 
 case of reports made before the expiration of the time-limit 
 there is a rule providing that joint committees may report 
 to either branch in their discretion, having reference to an 
 equal distribution of business between the two branches.* 
 There are exceptions to this as to all other rules, and one of 
 them is that " money bills " as we have previously seen, 
 must be reported to the House.'' 
 
 Recess Committees 
 
 While discussing the subject of committees, I ought to say 
 a word about Recess Committees and Committees of Con- 
 ference. 
 
 Recess Committees are committees appointed by the 
 presiding officers of the two Houses to sit during the recess 
 of the Legislature for the purpose of investigating some par- 
 ticular subject and of reporting thereon. In some years a 
 number of these committees are voted, and as the members 
 are paid the burden of expense imposed on the Common- 
 wealth may be a heavy one. Of course these committees 
 may, by taking a load of details off the shoulders of the 
 Legislature, save a great deal of time and accomplish bene- 
 ficial results; but generally speaking. Recess Committees 
 1 See Joint Rule 4. ^ See above, p. 96. 
 
I04 MASSACHUSETTS GOVERNMENT 
 
 should be tabooed as they involve an expense without 
 adequate compensation in service to the State. The abuse 
 of the Recess Committee system usually takes care of itself, 
 however, as popular protests are raised against the custom 
 when it is frequently resorted to. Only one Recess Com- 
 mittee was appointed while I was Speaker. I strenuously 
 opposed all others and had grave doubts about the advisa- 
 bility of that one. As the question it was to deal with was 
 being bitterly fought in the Legislature and related to an 
 important railway matter, namely a charter for a fast Une 
 between Boston and Providence which was being sought by 
 three responsible and important business houses, the ap- 
 pointment of a Recess Committee seemed on the whole 
 wise. The able report of this Recess Committee later justi- 
 fied the appointment. 
 
 Instead of having a Recess Committee, which is made up 
 of members of the Legislature, it is often customary to refer 
 matters of this sort (which have given committees and the 
 Legislature much trouble during the session), to one of the 
 State Boards or possibly to a special commission appointed 
 for the purpose by the Governor and composed of experts 
 who serve without pay. Reference to a State Board is the 
 most usual plan as members of such boards or commissions 
 are experts on their respective subjects and are already 
 receiving salaries from the Commonwealth. 
 
 Committees of Conference 
 
 Committees of Conference are committees appointed by 
 the presiding officers to clear up disagreements between the 
 two branches of the Legislature. For example, if a matter 
 has gone through one branch and an amendment has been 
 put on in the other branch in which the first branch fails to 
 concur, some member who is interested in the legislation arid 
 
LEGISLATIVE PROCEDURE I05 
 
 t hink s that possibly by talking the matter over in committee 
 a compromise may be reached, can rise and move for a Com- 
 mittee of Conference between the two branches. If this 
 vote prevails, then the President of the Senate and the 
 Speaker of the House each appoint three members. A Con- 
 ference report, if agreed to by a majority of each committee, 
 must be made to the branch which asked for the conference.' 
 
 The Committee of the Whole 
 
 There is still another kind of committee which should be 
 noted. In Washington when the tariff or some such com- 
 plicated matter is under discussion, the House of Repre- 
 sentatives will resolve itself into a Committee of the Whole. 
 The object of this is to give the members a greater freedom 
 by making debate informal. The proceedings do not go on a 
 journal, and a chairman is elected to take the place of the 
 regular presiding officer. To make the sitting still more 
 informal the chairman sits at the clerk's desk. In dealing 
 with complicated questions much benefit is gained by going 
 into Committee of the Whole. In State governments there 
 is little need for such procedure, and in Massachusetts it is 
 seldom if ever resorted to. 
 
 Joint Conventions 
 
 Just as we have Joint Committees and Committees of 
 Conference between the two branches of the Legislature, so 
 we have Joint Conventions in which the two branches sit 
 together as one body in the House of Representatives and 
 are presided over by the President of the Senate. Such 
 joint meetings take place when the Governor of Massa- 
 chusetts is inaugurated and so occur once a year, at least. 
 
 • Joint Rule 11. 
 
Io6 MASSACHUSETTS GOVERNMENT 
 
 They are also held by special vote whenever some distin- 
 gxiished person comes to address the Legislature, or to be 
 received by the Legislature, and they used to be held for the 
 election of United States senators when such Senators were 
 chosen by joint ballot of the House and Senate. 
 
 How Bills are Reported 
 
 But let us now return to our bill and petition for legisla- 
 tion which was left before a committee. If a hearing has 
 been held and both sides have been given an opportunity to 
 be heard (in case any one desires to be heard), the committee 
 may, after the hearings for the day have been closed, go 
 into what is called "executive session" and vote on this and 
 other matters. As a rule, however, executive sessions are 
 held at certain stated intervals, say every Thursday, and 
 matters that have been heard are then taken up for decision. 
 This gives due notice to committee members that any bills 
 on which hearings have been closed may be discussed and 
 voted on at that time. 
 
 If our bill or resolve is voted on favorably, it is then given 
 to one of the members of the committee to report to the 
 House or to the Senate. This member takes it to the clerk 
 of that branch of which he is a member, the clerk makes a 
 record of it and hands it to the presiding officer among other 
 reports of committees. 
 
 Proceedings in the Legislature 
 
 The order of proceedings in the legislative session is first 
 for the presiding officer to take the chair, when he says, 
 " The hour to which the House stands adjourned having 
 arrived, the House will now be in order "; then he remarks, 
 " Prayer will now be offered by the chaplain." Then he 
 
LEGISLATIVE PROCEDURE 107 
 
 asks for " petitions, memorials, remonstrances and papers 
 of a like nature." ^ Reports of committees are then taken 
 up, together with matters coming from the other branch. 
 The latter may be measures that have taken their several 
 readings there or they may be adverse reports that have 
 been accepted and sent over for concurrence. They may 
 also be notices of rejection of legislation which had already 
 gone through one branch. 
 
 All these proceedings take place before the calendar con- 
 taining what are called " the orders of the day " is taken up. 
 This calendar of course does not exist at the opening of the 
 session but gradually comes into being as reports come from 
 committees. Before the calendar is taken up, too, motions 
 for reconsideration must be made. The rules provide that 
 " no motion to reconsider a vote shall be entertained unless 
 it is made on the same day on which the vote was passed or 
 before the orders of the day have been taken up on the next 
 day thereafter on which a quonmi is present." ^ 
 
 In presenting the reports of committees to the House the 
 clerk reads off the list in this manner: — report of the com- 
 mittee on so and so, " leave to withdraw," or, " ought not to 
 pass," or " no legislation necessary " or " reference to next 
 General Court," ' or else that the committee on so and so 
 "report the accompanying bill" or "report the accompany- 
 ing resolve " as the case may be. In the first contingency, 
 that is, in case the report was adverse, the presiding officer 
 
 ' These may come in at any time during the session if they relate to pend- 
 ing legislation. See Joint Rule 12. 
 
 ^ See House Rule 70. 
 
 ' These expressions are technical. When a committee reports adversely 
 on a bill accompanied by a petition the term used is " leave to withdraw "; 
 when against a bill which has been introduced on leave " ought not to pass "; 
 when against a message of the Governor, or of a State Department or a Board 
 or Commission " no legislation necessary " while the expression " next 
 General Court " is applicable to anything. 
 
I08 MASSACHUSETTS GOVERNMENT 
 
 merely says, " Placed in the orders of the day for tomorrow." 
 In the second contingency, where a bill or resolve is reported, 
 he says, " First reading of the bill," if it is a bill, or of a 
 " resolve," if it is a resolve, and then says, " placed in the 
 orders of the day for tomorrow." This first reading takes 
 place as a matter of course and without debate. 
 
 Special Procedure nsr the Case of Bills for Raising 
 OR for Appropriating Money 
 
 Right here it might be well to state that rules governing 
 the reference of measures involving state and county money 
 are somewhat different in the Senate and House. In the 
 Senate all such matters, both State and County, are referred 
 to its Committee on Ways and Means, except those reported 
 from the joint committee of that name. In the House juris- 
 diction is divided. Measures concerning state money are 
 sent to the Committee on Ways and Means, and those 
 providing for the expenditure of county money are referred 
 to the Committee on Counties, which under House Rule 44 
 is termed the " Committee on Counties on the part of the 
 House." Of course any measure reported to the House 
 from the Joint Committee on Counties would not be so 
 referred, as the House members have already passed upon it 
 in joint committee. If then, a measure is reported dealing 
 with appropriations, that is contemplating an expenditure 
 of public money or grant of public property, the presiding 
 officer refers it to the Committee on Ways and Means. In 
 the House if it involves an expenditure of county money he 
 refers it after its first reading to the Committee on Counties 
 on the part of the House. Neither of these committees is 
 supposed to add any new provisions unless they are directly 
 connected with the financial features.^ 
 ^ House Rule 44. 
 
LEGISLATIVE PROCEDURE IO9 
 
 When a measure is reported by the Committee on Ways 
 and Means or by the Committee on Counties on the part of 
 the House as well as by another committee, the names of 
 two members appear in the calendar as in charge of the 
 measure, that is the name of the member who was given 
 charge of it for the original committee which made the report, 
 and the member in charge from the Finance Committee. 
 So also when it goes to the other branch it is in charge of the 
 chairmen of the two committees if a hearing was held before 
 the Joint Committee on Ways and Means; and if not it will 
 be in charge of the chairman of the committee originally 
 reporting the bill for that committee and whoever is given 
 the assignment from the Finance Committee. But suppose 
 the report of the Finance Committee is adverse ? Then the 
 members in charge for each committee appear against each 
 other, leading the contestants pro or con. 
 
 Stages in Passestg Bills 
 
 But to return to our bill before the House. When the 
 calendar is reached the next day it is read over, item by 
 item, by the presiding officer and if any member wishes to 
 discuss any matter on the calendar, he calls out " pass." 
 Matters which are not " passed," in this way are disposed of 
 then and there by being given a reading or by being rejected. 
 The calendar being read through, the presiding officer turns 
 back to the first matter which he has marked in pencil with 
 a " p " for " passed." As a rule discussion takes place, 
 though of course a member may merely have called out 
 " pass " in order to give himself the opportunity of investi- 
 gating the measure and may find that he does not wish to 
 oppose it. 
 
 Now when our matter is reached the question comes either 
 on accepting the report of the committee in case its report 
 
no MASSACHUSETTS GOVERNMENT 
 
 was adverse, or else of passing the bill to a third reading. 
 Suppose the first contingency has taken place, namely, an 
 adverse report: If the members vote to accept the report of 
 the committee the matter is held twenty-four hours for 
 possible reconsideration and then sent to the other branch. 
 A member may, however, rise and move to substitute the 
 bill for the adverse report of the conamittee and the question 
 is then put in some such form as this: " The Senator from 
 Suffolk, or Mr. So and So of Boston, moves to substitute for 
 the report of the Committee on Agriculture, leave to with- 
 draw, the following bill." The bill is then read by the clerk, 
 but only by its title, of course. 
 
 If the motion to substitute is rejected the question then 
 comes on accepting the adverse report of the committee and 
 after failure of the first motion acceptance is of course as- 
 sured.' If substitution prevails, however, then the biU is 
 given a first reading just as if it had originally come in from 
 the committee.^ It then takes its place in the orders of the 
 day for the next day (unless, of course, it is a financial meas- 
 ure and has to go to the Committee on Ways and Means or 
 the Committee on Counties.) ' It is now on the calendar for 
 its second reading and this is the first stage at which dis- 
 cussion of a bill on its merits is allowed. When the bill is 
 reached on the calendar the presiding officer says, " Second 
 reading of the bill." The clerk reads the bill by its title and 
 the presiding officer then says, " This bill has been read a 
 second time. Question on ordering it to a third reading." 
 If there is to be any discussion the members now rise one 
 after the other and put forth their views. They are recog- 
 nized in the order in which they stand up and catch the eye 
 
 • Rejection after this motion to substitute is a " final rejection." As to 
 the difference between these two cases, see below, pp. 126-128. 
 ' House Rule 43. ' See above, p. 108. 
 
LEGISLATIVE PROCEDURE III 
 
 of the chair, except that those who have not spoken on the 
 question are given a preference over those who have, and 
 those on the opposite side of the question from the preceding 
 speaker are preferred to those who desire to speak on the 
 same side. Often when a big debate is expected, the pre- 
 siding ofificer is furnished by the leaders on each side of 
 the question with the names of those whom they expect to 
 speak. This simphfies the task of recognizing members 
 pro and con alternately, and of dividing the time equally 
 between the two sides. 
 
 Votes and Roll Calls 
 
 If any one desires to raise a point of order that the bill is 
 broader than the scope of the petition this is the stage at 
 which to do so. But suppose the debate is over and no point 
 of order has been raised or if raised has been overruled. The 
 chair then puts the question. If the voice vote is over- 
 whelming, or if there has been little or no contest the matter 
 may end there. If not, a rising vote is demanded. All 
 those in favor are then asked to rise and the monitors return 
 the count. Then those opposed are asked to rise and the 
 count is declared. If the vote is still close or if there is a 
 desire to carry the matter further and get the members on 
 record, a roll-call is demanded. The presiding officer now 
 says, " All those in favor of ordering the yeas and nays will 
 please stand." To obtain a roll-call in the House thirty 
 members must rise; in the Senate one-fifth of the members 
 present. The monitors now return the count unless so many 
 members rise that all doubt is removed, in which case the 
 chair merely takes matters into his own hands and an- 
 nounces that " more than thirty members having joined in 
 the call the yeas and nays are ordered." Of course if less 
 than the required number rise, no roll-call is ordered and the 
 
1 1 2 MASSACHUSETTS GOVERNMENT 
 
 standing vote prevails. But if the requisite number de- 
 mand a roll-call the clerk gets out his list containing the 
 names of the members. Before the roll is called the " pairs " 
 should be announced. This is done by a member rising 
 
 in his place and saying, " I am paired with Mr. , 
 
 of , if he were here he would vote yes; I vote no " or 
 
 vice versa. On matters requiring more than a majority vote, 
 such as a constitutional amendment in the House, or the 
 passing of a measure over the Governor's veto or the suspen- 
 sion of the rules pairs are allowed; but they should not 
 be as the votes in such cases are not equal and ought not to 
 be so reckoned. Unless a rule is made against pairing it is 
 a difficult practice to discourage as members do not like to 
 refuse when asked by other members to pair. The chair now 
 asks, " Have aU pairs been aimounced ? " If he receives no 
 response he says " the clerk will now call the roU." The 
 names are called off alphabetically, and each member present 
 should answer yes or no when his name is called. I have 
 known members to leave their seats, however, or remain 
 in the lobby so as to avoid voting, and on one occasion a 
 member sitting near me had a page bring him a fake message 
 calling him away from the chamber. The member had 
 promised to vote for the resolve but had changed his mind 
 and sent himself a telegram so as to have an excuse for 
 going outside and side-stepping the vote. Weak men often 
 change their minds when they see that they are on the losing 
 side. When the roll has been called those who wish to 
 change their votes may rise and ask how they are recorded, 
 and if they claim to have been recorded erroneously they 
 may ask to be recorded the other way. The clerk now 
 coimts the votes pro and con, and hands the result to the 
 presiding officer. The latter announces the result by saying : 
 " On this question so many members having voted in the 
 
LEGISLATIVE PROCEDURE II3 
 
 affirmative and so many in the negative the bill is ordered 
 to a third reading." Or if the negatives prevail he varies 
 this last clause by saying: " and the bill is rejected." If the 
 vote is a tie, or the chair's vote would make it a tie, or if for 
 any other reason the chair desires to vote he asks the clerk 
 to call his name before the vote is announced. There is no 
 rule requiring the presiding officer to be recorded, however. 
 
 The Committee on Bills in the Third Reading 
 
 The bill or resolve now having been ordered to a third 
 reading, it is so endorsed by the clerk and by him sent to the 
 Committee on Bills in the Third Reading.^ It goes to this 
 committee for examination, correction and report. The bill 
 or resolve appears as a matter of course in the calendar for 
 the next day; but when it is reached on the calendar, if it 
 has not been returned to the clerk the presiding officer passes 
 it by, remarking merely that the matter is still in the hands 
 of the Committee on Bills in the Third Reading. 
 
 There is no rule limiting the time this committee can hold 
 a measure, but a reasonable time is assuhied. Of course the 
 presiding officer will urge on this committee as on all others, 
 to hurry up and report matters; but persuasion is not al- 
 ways sufficiently effective. On one occasion when the so- 
 tailed " Boston Caucus Act " was before the Legislature 
 there was an attempt to stall the legislation in this way. 
 The measure had gone through the House after a long drawn 
 out contest, the Boston Democrats being solidly against it. 
 On reaching the hands of the Committee on Bills in the 
 Third Reading in the Senate, which was made up of two 
 Democrats and one Republican, the bill mysteriously 
 disappeared, and nobody could find it. It was too late to 
 introduce a new measure under the rules, and with so much 
 ' Senate Rule 33; House Rule 50. 
 
114 MASSACHUSETTS GOVERNMENT 
 
 opposition there was no possibility of getting a four-fifths 
 vote to suspend the rules. There happened to be other peti- 
 tions, however, which had been before the Committee on 
 Election Laws, relating to this same subject. Another bill 
 similar to the one that had disappeared was quickly drawn 
 up and presented to the House, based on one of these 
 petitions; and this time when it reached the Senate due 
 care was taken to see that it did not vanish from sight. 
 
 When the Committee on Bills in the Third Reading have 
 finished their scrutiny of the bill they return it to that branch 
 of which they are members, and the bill then comes up for 
 another reading. The chief work of the committee lies in 
 correcting the spelling and grammatical mistakes in the bill 
 and sometimes re-drafting it to make the English correct. 
 If they do more than this and should change the sense of the 
 bill, or make any material change these alterations must be 
 reported in the shape of amendments, to be separately 
 printed and to appear in the calendar.' 
 
 The measure being again in the jurisdiction of the House, 
 the presiding officer when it is reached in the calendar says 
 " Third reading of the bill." The clerk then reads the bill 
 by its title only, and the Speaker puts the question thus: 
 " This bill has been read three times and is reported by the 
 Committee on Bills in the Third Reading to be correctly 
 drawn; question on passing it to be engrossed; those in 
 favor say ' aye ' those opposed ' no '; the ' ayes ' have it." 
 Debate, if any, at this stage and the voting, in case of a 
 count or a roll-call, take place as previously explained.^ 
 The measure is now held twenty-four hours in order to allow 
 time for reconsideration. Then it is sent to the other 
 
 1 Senate Rule 33; House Rule 26. See also Rulings on House Rules 
 under Rule 50. It is within the province of the Committee on Bills in the 
 Third Reading, to report that a biU ought not to pass. 
 
 * See dbme, pp. iro-113. 
 
LEGISLATIVE PROCEDURE II5 
 
 branch and if it came originally from a joint committee as 
 most bills do, it at once takes a reading and goes into the 
 orders of the day for the following day. Of course if it came 
 from a committee of one branch alone it must be referred to 
 the like committee of the other branch, or if it is a bill in- 
 volving the expenditure of money and has not been acted on 
 by the Committee on Ways and Means of both branches, it 
 must be referred to that committee for action and report. 
 Generally speaking, however, the bill goes into the orders of 
 the day for the next day, and then takes its several readings 
 in the same way as in the first branch, as aheady described. 
 
 Suspending the Rules to Expedite Bills 
 
 Under the rules, bills are read only by their titles unless a 
 special request to have them read in full is made by some 
 member, or unless they are put through under suspension of 
 the rules. Under suspension of the rules a bill may be put 
 through all its stages in five minutes. This is done by a 
 member's rising and asking to have all rules suspended in 
 order that the matter may take its several readings at the 
 present time. If this motion is made in the House of Repre- 
 sentatives and there is any opposition, debate is limited to 
 fifteen minutes, no member to occupy more than three 
 minutes.^ Such a motion can only succeed in extraordinary 
 cases where there is no opposition to the measure. 
 
 In either branch a two-thirds vote is necessary to alter 
 anything in the rules, and unanimous consent is required to 
 suspend the rule which requires bills ordered to a third read- 
 ing to be referred to the Committee on Bills in the Third 
 Reading, or to suspend the rule relative to reconsideration. 
 In the Senate it also takes unanimous consent to suspend 
 the rule requiring engrossed bills to go to the Committee on 
 ' House Rule loz. 
 
Il6 MASSACHUSETTS GOVERNMENT 
 
 Engrossed Bills.' These rules are a safeguard against hasty 
 legislation. 
 
 Engrossment of Bills 
 
 When a measure has been passed through its three stages, 
 or as it is termed, passed to be engrossed, in the second 
 branch, it goes to the office of the Secretary of State to be 
 engrossed on parchment. When so engrossed it is sent to the 
 House, examined by the Committee on Engrossed Bills, and 
 if found to be rightly and truly engrossed, is put upon its 
 final passage. If passed, it is signed by the Speaker, and 
 sent to the Senate, where it goes through the same process," 
 and when passed is signed by the President of that body and 
 laid before the Governor for his approbation. Formerly the 
 process of engrossment on parchment was very slow as the 
 law required bills or resolves to be written out by hand. A 
 few years ago, however, this law was changed so that type- 
 written engrossment is now legal. 
 
 Notice that the bill, after passing to engrossment in the 
 first branch is not engrossed or sent to the Committee on 
 Engrossed Bills in that branch; it must wait before being 
 sent to the Secretary for engrossment imtil the second 
 branch concurs in passing it to be engrossed. This pre- 
 sumably is to obviate going through the work and expense 
 of writing out measures imtil they have passed through both 
 branches. Of course the chances are that when measures 
 have been engrossed they will not be defeated. It is rather 
 unusual for them to be even attacked in the enactment 
 stage. Under the rules no amendment to the substance of 
 the bill is in order, and the only amendment allowed is to 
 strike out the enacting clause. This is the opening clause of 
 every bill and reads: " Be it enacted, etc." If that motion 
 carries the bill is of course defeated. 
 
 ' House Rule 103; Senate Rule 63. ■' See Joint Rule 17. 
 
LmiSLATIVE PROCEDURE II7 
 
 When the measure comes back from the committee on 
 engrossed bills it is wrapped around the original bill and 
 placed in a tin with other engrossed bills on the desk of the 
 presiding officer. He takes them out and announces, " The 
 following engrossed bills reported by the Committee on 
 Engrossed Bills to be rightly and truly engrossed will now 
 be put upon their final passage. ' ' If any one wishes to defeat 
 one of these bills now is the time to move to strike out the 
 enacting clause. As a rule all the fighting has taken place at 
 previous stages, and unless something has happened to 
 change the minds of members there is Uttle to be gained by a 
 contest at this stage. But if a contest is to take place, the 
 member interested in making the opposition usually asks the 
 presiding officer to notify him when the matter comes back 
 from the Committee on Engrossed Bills, because measures 
 at that stage are not placed in the calendar, and otherwise 
 they might slip through without being noticed. The presid- 
 ing officer accordingly sends a page down to notify the 
 member that the matter is going to be read and the member 
 can proceed to contest it at once or may move to have debate 
 on it postponed. The measure, if it goes successfully 
 through this stage, is signed by the Speaker and sent to the 
 Senate, where it goes to the Committee on Engrossed Bills 
 and when reported upon by them after examination and 
 comparison as rightly and truly engrossed it is signed by the 
 President and sent immediately to the Governor.* 
 
 Bills and Resolves 
 
 When one picks up the Blue Book he reads as the title 
 "Acts and Resolves." Now a resolve rather than a bill 
 may accompany a petition when introduced; like bills they 
 
 ' While an enacted bill may be reconsidered, there is no requirement 
 that it be held for twenty-four hours (see Senate Rule 8 and House Rule 15). 
 
Il8 MASSACHUSETTS GOVERNMENT 
 
 may also be filed on leave or they may be taken from the files 
 of the previous year, if they happen in that year to have 
 been referred to the next General Court. 
 
 A " resolve " differs from an " act " in that it is of a tem- 
 porary nature and does not provide for lasting legislation. 
 It is more like a resolution. Thus it may provide for an 
 appropriation from the treasury of the commonwealth or 
 contain an expression of opinion that money should be ap- 
 propriated or that certain other things should be done, or it 
 may deal with such matters as the appointment of an inves- 
 tigating committee or the ratification of acts done by a 
 Justice of the Peace or by a Notary after the expiration of 
 his commission. It is sometimes difficult for petitioners to 
 tell the difference and in doubtful cases they should ask the 
 clerk whether the request for legislation should be embodied 
 in a bill or in a resolve. Often, too, committees make the 
 change from one to the other and report in the shape of a 
 resolve something which may have been introduced as a bill 
 or as a bill what may have been erroneously put in as a 
 resolve. 
 
 General and Special Laws 
 
 We also find that there are " general " and " special " 
 laws. For the last fifteen or twenty years special laws have 
 not been printed every year as have the general laws, but 
 have been edited triennially. Before that time they were pub- 
 lished every five years. The Legislature of 191 4, however, 
 made provision that hereafter special as well as general laws 
 should be published yearly, each in a separate volume. 
 
 The distinction between a general and a special law is 
 sometimes hazy and the Secretary's office itself has difficulty 
 in deciding which label a law should bear. In case of doubt 
 the matter is placed in the volume on General Laws. Broadly 
 speaking, legislation affecting the state at large, or counties 
 
LEGISLATIVE PROCEDURE II9 
 
 or districts, may be classed as general laws, likewise all 
 legislation relating to State Boards or Commissions or to 
 courts which touch state or county expenses. Special laws, 
 on the other hand, are laws affecting a city, town, corpora- 
 tion or individual. 
 
 Miscellaneous Points in Procedure 
 
 Thus far in the discussion of legislative proceedings 
 several matters of importance that might properly have 
 been taken up were omitted so as not to complicate the 
 direct questions dealt with. For instance, no description 
 has been given as to the method of nominating and electing 
 the presiding officer of each branch; no space has been de- 
 voted to the methods of limiting debate; nothing has been 
 said as to how points of order are decided and no attempt 
 has been made to explain what is meant by matters being 
 " finally rejected." 
 
 How Presiding Officers are Chosen 
 
 The positions of President of the Senate and Speaker of 
 the House are much sought after. These offices are not only 
 places of power and dignity in themselves but stepping 
 stones to higher political honors. A contest almost invari- 
 ably takes place, therefore, when a presiding officer resigns 
 or retires. It is very unusual for one to ensue if the old 
 President of the Senate or Speaker of the House is to return. 
 Where the field is left open, however, the candidates an- 
 nounce themselves soon after the session is closed and 
 organize their bands of followers, carrying on a campaign 
 through the summer. Until after the election in November 
 nobody can tell definitely who will be members of the new 
 Legislature, but nevertheless former members, if they 
 should be candidates at the polls, are very apt to be returned 
 
I20 MASSACHUSETTS GOVERNMENT 
 
 again, and if pledges of support can be obtained from them 
 it is a great help not only because of their own votes, but 
 because of the influence they will have with new members. 
 The active candidate for presiding officer will, of course, 
 pledge as many prospective aspirants as he can, whether 
 before or after the primaries, and if he can get a promise from 
 all the candidates of his party at the primaries so much the 
 better. If not, he gets what he can and often will support 
 the ones that favor him against those that do not declare 
 at all or declare themselves against him. As a rule men are 
 not very apt to declare themselves one way or the other 
 even after they are nominated at the primaries, but wait 
 until they are elected at the polls and even then most of 
 them are slow about taking sides. Very often one of the 
 candidates has such an overwhelming lead that the others 
 retire from the contest before the Legislature meets. If they 
 do not retire and the contest is carried to a vote the first 
 test comes in the caucus of the members. These caucuses 
 are called, just before the Legislature meets, by the older 
 members of each branch. The Senators of each poHtical 
 party receive notice to meet at a certain room in the State 
 House and the Representatives of each political party are 
 smnmoned to meet in another, each to hold a separate 
 caucus for the nomination of President or Speaker and 
 of a clerk and chaplain. These caucuses are held two or 
 three days before the Legislature meets. Here nominating 
 speeches take place and the party candidates are chosen. 
 When the Legislature meets the first business is to organize, 
 and the senior member present takes the chair in each 
 branch until a presiding officer is chosen. The senior mem- 
 ber, of course, is not the oldest member in point of age but 
 is the man whose first appearance as a senator or representa- 
 tive antedates that of any of the others. Thus a member 
 
LEGISLATIVE PROCEDURE 121 
 
 who first came to the Senate in 1890 or previously is senior 
 to an older man who first came in 1891. 
 
 When this senior member has taken the chair and called 
 the House to order a vote is taken to elect a presiding 
 officer. This is done by passing the ballot box, or, if the 
 members so vote, by calling the roll, and the candidate 
 receiving the highest number of votes is elected to the chair. 
 He then is duly escorted to his seat and makes his address to 
 the assembled members after which a clerk and chaplain are 
 elected. Committees are then announced and notice is sent 
 to the other branch that the body is organized. After the 
 two bodies have elected a Sergeant-at-Arms, notice is sent 
 to the Governor through a joint committee that the whole 
 Legislature is duly organized. As a rule, of course, the 
 RepubUcan members all vote for the nominee of their own 
 caucus and the Democratic members for the nominee of 
 theirs. Every so often, however, party bonds are loosely 
 regarded and, as we saw a few years ago with the rise of the 
 Progressives, caucuses do not necessarily control. Thus, 
 in the election of Mr. Walker as Speaker for a third term, 
 his followers thought it advisable to require a roll-call so 
 they could know how the members voted, and, as they 
 thought, keep their followers more surely in hne. 
 
 Absences 
 
 In case the presiding officer is to be absent during the ses- 
 sion he may appoint a member to take his place. He can 
 only do this, however, for three days at a time. At the end 
 of that period if he has not again designated who should 
 preside, the senior member present takes the chair and pre- 
 sides until a Speaker pro tempore or a new Speaker is duly 
 elected; and this matter takes precedence over all other 
 business. In case the presiding officer dies, or resigns, or is 
 
122 MASSACHUSETTS GOVERNMENT 
 
 away, or in case the member named by him to preside in his 
 absence is not present, again the senior member presides 
 until an election takes place as described above.^ 
 
 There is a rule in both branches of the Legislature that a 
 member shall not be absent more than two days at a time 
 without leave nor shall he stay away without leave at all 
 imless there is a quorimi without him.^ But few of the 
 members know of this rule, and if a member should ask 
 leave of the presiding ofl&cer to be away it would be regarded 
 as a joke. However, most members of the Legislature are 
 not there to neglect their duties and the attendance is good. 
 
 If members are leaving the session in great numbers or if 
 there is any danger of losing a quorum, the presiding officer 
 can order the doors closed and then of course no member can 
 leave without special permission as the door-keepers will 
 not let him out without the consent of the presiding officer. 
 
 Maintenance of Discipline 
 
 The members are usually well-behaved, especially if the 
 presiding officer is a man of power and firmness. Excessive 
 noise from conversation while a member is speaking is 
 usually the chief annoyance. This can generally be stopped 
 by the poimding of the Speaker's gavel or by a verbal rep- 
 rimand, and it is in the House with its two himdred and 
 forty members rather than in the smaller branch that these 
 measures are apt to be necessary at times. Compared with 
 the noise in the Federal House of Representatives and in 
 some other legislative halls the Massachusetts body is quiet 
 and orderly. In Washington, unless the subject of debate 
 is of unusual importance, few Congressmen make any serious 
 attempt to Ksten. In some legislative bodies in Continental 
 
 ' See Rules 4 and s of the Senate, and 7 and 8 of the House. 
 2 Senate Rule 11; House Rule 17. 
 
LEGISLATIVE PROCEDURE 1 23 
 
 Europe where the presiding officer is provided with a bell 
 instead of a gavel, pandemonium often reigns. 
 
 If a member is insolent, or obstreperous, or breaks any of 
 the rules of the House he may be required to make satis- 
 factory explanation, and until he has done so he is not 
 allowed to vote or to speak except to make his excuses. 
 This has been done where a member used objectionable 
 language about another member in debate and subse- 
 quently refused to apologize. In this case a committee was 
 appointed to consider the matter. They reported that until 
 due apology was made the offending member's privileges 
 should be curtailed. It was some time before an apology 
 enabled the offender to be reinstated. 
 
 Where Private Interests are Concerned 
 
 There is a rule against members' serving on committees 
 on questions where their private right distinct from the 
 public interest is immediately concerned.^ A point of order, 
 however, will not lie on the ground that two of the members 
 of the conmiittee reporting the bill were ineligible under this 
 rule.'' In connection with this rule, another which is ger- 
 mane to the subject should be taken up, namely, the rule 
 that "• No member shall vote upon any question where his 
 private right is immediately concerned distinct from the 
 public interest." ^ 
 
 These two prohibitions are put together in the Senate 
 under Rule 10, while in the House they are provided for by 
 two separate rules. The rulings of presiding officers on this 
 point are interesting and the distinction drawn between 
 private rights and public interest seems rather broad. For 
 
 1 Senate Rule 10; House Rule 24. 
 
 2 " Notes of Rulings " under House Rule 24. 
 " House Rule 63; under Senate Rule 10. 
 
124 MASSACHUSETTS GOVERNMENT 
 
 instaxice, " in the case of a bill relative to the common use of 
 tracks by two or more street railway companies it was held 
 that it was not a matter in which the private right of the 
 senator, who was President of the street railway company, 
 could be said to be immediately concerned as distinct from 
 the public iaterest." '■ Under House Rule 63 it has been 
 similarly held that in the case of a creditor or stockholder 
 of the Eastern Railroad, he could vote on a bill " for the 
 rehef of the Eastern Railroad Company and the securing of 
 its debts and liabilities, inasmuch as said creditor's or stock- 
 holder's interest was not distinct from the pubHc interest 
 but was inseparably mixed with it." 
 
 It has also been held that a director of a bank which has 
 petitioned for an increase of capital was " not to be ex- 
 cluded by interest from voting on a motion to instruct the 
 Committee on Banks and Banking to report leave to with- 
 draw on all petitions by banks for an increase of capital." 
 On the other hand, " In the case of a ' bill to equalize the 
 bounties of our soldiers ' which provided for pajdng certain 
 sums of money to a particular class of persons described in 
 the bill," it has been held " that a member who, under the 
 provisions of the bUl would be entitled to $200, had such an 
 interest as would deprive him of the right to vote." 
 
 " The proper time to raise a point of order questioning 
 the right of a member to vote on account of interest, is after 
 the roll has been called and the member's vote recorded." ^ 
 
 DEcroiNG Points of Order 
 
 Of course the most usual point of order to raise against a 
 
 measure is that the bill is beyond the scope of the petition; 
 
 but in a hot debate points of order are raised because a 
 
 ' " Notes of Rulings " under Senate Rule 10. 
 
 ' " Notes of Rulings " under House Rule 63 and references there dted. 
 
LEGISLATIVE PROCEDURE 1 25 
 
 member is not talking to the question, or is using unparlia- 
 mentary language, or for all sorts of reasons. In the great 
 majority of cases the question will not be a difficult one and 
 a ruling can be given by the presiding officer off-hand. 
 Sometimes, too, advance information is given that a point 
 of order may be raised. In this case the presiding officer 
 and clerk have an opportunity to look into it. In close and 
 important cases, however, it is necessary for the chair to take 
 the matter under advisement. In such cases the matter is 
 usually postponed without question to enable the presiding 
 officer to look into the point of order. I remember with 
 great distinctness one point of order that was raised during 
 my Speakership, because the matter was of very far-reach- 
 ing importance. During the contest over a measure to 
 change the site of the Registry of Deeds of Plymouth 
 County from the town of Plymouth to the city of Brockton, 
 a point of order was raised that the bill reported by the com- 
 mittee was beyond the scope of the petition. I had heard 
 rumors that a point of order might be raised, but had not 
 looked into the matter as I thought the question would 
 probably be fought out on its merits, since, if the bill were 
 thrown out on a mere point of order that would probably be 
 an additional incentive to continue the fight another year, 
 whereas if the bill was decisively defeated or went through, 
 the whole question would be finally disposed of. However, 
 the point of order was made by one of the members who 
 favored leaving the Registry where it was, and I took the 
 matter under advisement. After consultations with the 
 Clerk of the Senate as well as with the Clerk of the House, 
 the matter being of such great importance, I reached the 
 conclusion that the bill was beyond the scope of the petition 
 and ruled accordingly. Strange to say, instead of stirring 
 up animosity or providing any greater incentive to push the 
 
126 MASSACHUSETTS GOVERNMENT 
 
 measure another year, the whole proposal seems to have 
 dropped out of sight. Although a ruling by the chair is not 
 necessarily final, as a member can appeal from it, no appeal 
 is in order unless seconded and even when seconded the 
 members will always vote to sustain a ruling unless it is 
 manifestly unfair. Consequently an appeal is seldom taken. 
 
 Discouraging Special Acts 
 
 There is a rule * providing that " When the object of an 
 appHcation can be secured without a special act under 
 existing laws, or without detriment to the public interests, 
 by a general law, the committee to which the matter is 
 referred shall report such general law, or leave to withdraw, 
 or ought not to pass, as the case may be." This is an excel- 
 lent rule, and instead of being merely in the rules of the 
 Legislature it is embodied in the constitutions of some of 
 the western states. 
 
 If it is not desired to observe the principles embodied in 
 this provision, it is of little more use to put it in a constitu- 
 tion than to have it in the rules of the Legislature. But the 
 principle is absolutely right and fair, because if any privi- 
 leges are to be issued they should be given broadly to all in 
 any line of business and not meted out to favorites. 
 
 Final Rejections 
 
 In an earher part of this chapter, reference was made to a 
 possible distinction between matters going from one branch 
 to the other where in one case a motion to substitute and a 
 contest had been made in the first branch, and where in the 
 other case the committees' report had been accepted without 
 contest.^ In the first case if the second branch substitutes 
 the measure and it comes back to the first branch, it is 
 
 ' House Rule 30; Senate Rule 16. 2 g^g gj„j,g^ ^ ^^^^ ^^^ ^^^^ ^ 
 
- LEGISLATIVE PROCEDURE 1 27 
 
 thrown out under the rules as it had been finally rejected 
 there. In the second case it could come back or another 
 measure substantially the same could be acted on, because 
 the matter had not been finally rejected.' 
 
 Rule 49 of the House provides, "When a bill, order, peti- 
 tion, memorial or remonstrance has been finally rejected 
 by the House, no measure substantially the same shall be 
 introduced by any committee or member during the same 
 session." 
 
 There have been numerous rulings on this point both in 
 the Senate and in the House. They show that the rule ex- 
 presses a general principle of parliamentary law. It has been 
 held that the fact that a bill has been finally rejected in one 
 branch does not prevent its introduction in another; but 
 where a bill or measure has been rejected by both branches 
 this rule, as well as parhamentary practice, would prevent 
 another measure substantially the same from being intro- 
 duced in either branch at that session. Even if one branch 
 has passed such a measure, courtesy between the two will 
 not prevent the second branch from laying the matter aside. 
 " The rejection of a measure does not prevent the considera- 
 tion of a measure substantially the same if it was introduced 
 previously to such rejection." 
 
 It will be noticed in the House rule that the words used 
 are " fimally rejected by the House," whereas the Senate 
 rule reads " finally rejected." Thus it has been held in 
 rulings by Speakers of the House that " a bill passed to be 
 engrossed by the House but rejected by the Senate is not by 
 this rule barred from being again introduced in the House." 
 
 A bill is regarded as not substantially the same if it has 
 been changed in any essential particular; thus it has been 
 held that " the rejection of a bill providing for permanent 
 
 ' Notes of Rulings on House Rule 49, and also those on Senate Rule 54. 
 
128 MASSACHUSETTS GOVERNMENT 
 
 clerical assistance does not exclude the subsequent intro- 
 duction of a resolve providing for temporary clerical assist- 
 ance." It has also been held that after a bill was rejected 
 one of the sections of the bill could be introduced without 
 violation of the rule. 
 
 Reference to the next General Court seems to be not a 
 final rejection and where a bill has been read a third time it 
 is held too late to raise the point of order that it was sub- 
 stantially the same as a bill already rejected, and thus 
 improperly before the House.^ 
 
 This last ruling is consistent with the decisions under 
 House Rule 30 where it has been held that a violation of 
 that rule cannot be raised after a bill has been ordered to a 
 third reading and with those under Rule 47, where it has 
 been held that substitution of a bill for the report of a com- 
 mittee makes it too late to raise the point of order that the 
 bill is broader in its scope than when it was offered to the 
 Committee.'' Massachusetts has a liberal Constitution as I 
 have shown. The rules of her Legislature are liberal too. 
 There are only four other State Legislatures, according to 
 Mr. Reinsch, that require a report from a committee within 
 a certain time. In Massachusetts every committee has to 
 report on all measures sent to it. There is no stifling of mat- 
 ters in committee. Hearings are given, and generously 
 advertised, on all subjects, whether of great or little im- 
 portance. Professor Reinsch says: 
 
 . . . the General Court of Massachusetts is in all respects nearest 
 the people, and most responsive of any American legislature to intelli- 
 gent public opinion.' ... It is indeed quite necessary that all states 
 should adopt and enforce legislation like that of Massachusetts, which 
 requires sufficient notice of all committee meetings.* 
 
 ' Notes of Rulings on House Rule 49. 
 
 ^ See above, p. 91. 
 
 ' American Legislatures and Legislative Methods, p. 174. * Ibid,, p. 257. 
 
INDEX 
 
INDEX 
 
 Absences, in the Legislature, 121- 
 122; of presiding officers, 121-122; 
 of members, 122. 
 
 Acts and Resolves, 90, 117-118. 
 
 Adams, C. F., Life and Works of John 
 Adams, 26 n., 27 n. 
 
 Adams, John, influence of Province 
 Charter upon, 15 ; work of, in Con- 
 stitutional Convention, 25-27; on 
 working of the caucus, 75. 
 
 Adams, Samuel, chosen member of 
 sub-committee of constitutional 
 convention, 25; elected governor, 
 74; nomination of, for representa- 
 tive, 75 n. 
 
 Adjourrmients, right of General 
 Court in matter of, 14, 69-70. 
 
 Admiralty Courts, in Plymouth, 5 ; in 
 Massachusetts Bay, 9. 
 
 AUen, Rev. Thomas, view of, con- 
 cerning state government, 20-22. 
 
 Amendments, to Constitution, provi- 
 sions for, 28, 40, 46-50; rejection of, 
 after Convention of 1820, 4i-4S» 
 accepted during 1820-1853, Si.-SS'> 
 advantages of present method of, 
 59; changes made by, in General 
 Court, 61-65 ; in relation to annual 
 elections and sessions, 63-64; to 
 the granting of city charters, 64; to 
 direct legislation, 64-65 ; to the use 
 of voting machines, 65; to the con- 
 stitutional privileges of Senate and 
 House, 65-66; to the impeach- 
 ment power, 66-67; to incompat- 
 ible offices, 71. 
 
 Andrew, John A., term of office, as 
 governor, 73. 
 
 Andros, Sir Edmund, succeeds Dud- 
 ley as Royal Governor of Massa- 
 chusetts, II. 
 
 Appointments, power of governor in, 
 79-81. 
 
 Appropriation, power of, taken from 
 governor by assembly, 16. 
 
 Ashfield, vote passed by town meet- 
 ing of, in regard to state govern- 
 ment, 20. 
 
 Assembly, relation of, to provincial 
 governors, 15-17; control of, over 
 military affairs, 15-16. See also 
 General Court, Legislature. 
 
 Assistants, to governor, office of, first 
 established, 4; number of, 4; Court 
 of, 5, 8-9; under Colony Charter, 
 6; became the Governor's Council 
 under Province Charter, 12. See 
 also Council. 
 
 Attorney-General, direct election of, 
 
 S3. S4- 
 Auditor, direct election of, 53, 54. 
 
 Banks, Nathaniel P., Jr., Governor, 
 removal of Judge Loring by, 37; 
 president of Constitutional Con- 
 vention of 1853, 51. 
 
 Barnstable County, in Plymouth 
 Colony, 5. 
 
 Barry, J. S., History of Massachusetts, 
 ion. 
 
 Bartlett, Mr., member of Constitu- 
 tional Convention, 52. 
 
 131 
 
132 
 
 INDEX 
 
 Baylies, Francis, Memoirs of Ply- 
 mouth Colony, 4 n. 
 
 Belknap, ex-Secretary, impeachment 
 of, 69. 
 
 Bellingham, proposal of, in regard to 
 state constitution, 20. 
 
 Berkshire, part played by, in adop- 
 tion of constitution, 22-23. 
 
 Bill of rights, draft of, by John 
 Adams, for constitution, 26. 
 
 Bills, filing of, 90-91; relation of, to 
 petition, 90-92; introduction of, 
 92-94; reference of, to committees, 
 96-97; consideration of, by com- 
 mittees, 100-103; reporting of, by 
 committees, 102, 106-108; special 
 procedure for, in case of appro- 
 priating or raising money, 108-109; 
 the passing of, 109-116; votes and 
 roll-calls on, 111-113; third read- 
 ingof, 113-115; suspension of rules 
 for expediting of, 115; engross- 
 ment of, 116-117; signing of, 116; 
 relation of, to acts and resolves, 
 117-118; decision of points of 
 order relating to, 124-126; final 
 rejections of, 126-128. See also 
 Petitions. 
 
 Blue Books, of Massachusetts, go. 
 See also Acts and Resolves. 
 
 Boston, rejection of first proposal for 
 state constitution by, 21; ad- 
 journed meeting of constitutional 
 convention held in, 26; constitu- 
 tional convention of 1853 held at, 
 si; first city charter granted to, 64. 
 
 Boutwell, George S., member of Con- 
 stitutional Convention, 52. 
 
 Bowdoin, James, first president of 
 constitutional congress, 25; elec- 
 tion of, as governor, 74. 
 
 Bradbury, Justice, removal of, by 
 address, 34. 
 
 Briggs, George N., member of Con- 
 stitutional Convention, 52- 
 Bristol County, in Plymouth Colony, 
 
 S- 
 Butler, Benjamin F., member of Con- 
 stitutional Convention, 52. 
 
 Cambridge, sessions of assembly held 
 in, 16-17; meeting-place of Pro- 
 vincial Congress, 18; first consti- 
 tutional convention held in, 25. 
 See also Harvard College. 
 
 Caucus, origin of name and early use 
 of) 75-76; for choosing officers in 
 Legislature, 120. 
 
 Censorship, power of, taken from 
 governor by assembly, 16. 
 
 Charles I, charter granted by, in 
 1628, 6-7. 
 
 Charters, for cities, power of General 
 Court to grant, 64. 
 
 Charters, of Massachusetts, 6-17; 
 Colony, 7-11; Province, 11-17; 
 explanatory, granted by King 
 George, 14. See also Colony Char- 
 ter, Province Charter. 
 
 Chesterfield, unfair representation 
 of, under proposed Constitution 
 of 1853, 5S. 
 
 Choate, Rufus, member of Constitu- 
 tional Convention, 52. 
 
 Cities, power of General Court to 
 grant charters to, 64. 
 
 Colony charter, of Massachusetts, 
 6-7; annulment of, 8. 
 
 Committees, on Rules, 94-96; legis- 
 lative, selection of, 97; Standing 
 and Joint Standing, 98-100; con- 
 sideration of measures by, 100-103; 
 Recess, 103-104; of Conference, 
 104-105; of the Whole, 105; on 
 BiUs in the Third Reading, 113- 
 115; on Engrossed Bills, 116-117. 
 
INDEX 
 
 133 
 
 Concord, meeting of Provincial Con- 
 gress in, 18. 
 
 Constitution, of Massachusetts, re- 
 lation of, to Province Charter, 15; 
 events leading up to adoption of, 
 19-21; proposals for, made by 
 various towns, 20-21; rejection of 
 first proposal for, in 1778, 21-22; 
 continuance of agitation for, 22- 
 23; assembly of first convention 
 for, 25; work of John Adams for, 
 25-27; submission and accep- 
 tance of, 27-28; amendments to, 
 28, 40, Si-SS, 61-71; distinctive 
 features of, 29; provision in, for 
 elective offices, 29-30; limitation 
 of martial law by, 31-32; removal 
 of judges by address in, 32-39; 
 proposalsof, 1853, 52-60; probable 
 reasons for defeat of changes to, 
 53-54; faults of proposed changes 
 in, 55-58; provision of, as to im- 
 peachment, 68; against holding 
 incompatible offices, 70; right 
 given by, to demand judicial 
 opinions, 83-84. 
 
 Constitutional Convention, meeting 
 of, in 1779, 25; work of drafting 
 delegated to John Adams, 25; 
 submission of draft to people by, 
 27; dissolution of , 27; of 1820, 40- 
 50;' personnel and work of, 40; 
 rejection of amendments sub- 
 mitted by, 41-45; acceptance of 
 amendments of, 45-50; of 1853, 
 51-59; personnel of, 52; general 
 propositions submitted by, 52-53; 
 changes proposed, 53-55. 
 
 Continental Congress, election of 
 delegates to, in 1774, 18. 
 
 Conventions, joint, of the General 
 Court, 105-106. See also Constitu- 
 tional Conventions. 
 
 Coote, Richard, Governor, use of 
 title in connection with, 74. 
 
 Council, for advising the governor, 
 establishment of, 12-13; powers 
 of, under Province Charter, 13-15; 
 appointment of, in 1774 by king, 
 17; provision for, in Constitution 
 of 1780, 30; present basis of elec- 
 tion for, 43; changes made in, by 
 amendments, 61; incompatibility 
 of office in, 70; duties of, in con- 
 nection with governor, 78-81; con- 
 firmation of governor's appoint- 
 ments by, 81; right of, to require 
 judicial opinions, 83-84; advice 
 and consent of, in pardons, 85. 
 
 County Courts, in Plymouth, 5; in 
 Massachusetts Bay, 8. 
 
 Courts, varieties of, in Plymouth 
 Colony, 5; in Massachusetts Bay, 
 8-1 1 ; provisions relating to the 
 election of officers of, in Constitu- 
 tion of 1853, 54; tenure of offices 
 of 56-58. See also Admiralty 
 Courts, County. Courts, Magis- 
 trates, Court of. Selectmen's Court, 
 Supreme Court. 
 
 DaUinger, F. W., Nominations for 
 Elective Office, 77 n. 
 
 Davis, John, member of Constitu- 
 tional Convention, 52; term of 
 office as governor, 73. 
 
 Dawes, Henry L., member of Con- 
 stitutional Convention, 52. 
 
 Day, Judge, removal of, by address, 
 
 34-37- 
 
 Delegates, to General Court, first 
 assembly of, in Plymouth, 4; pro- 
 vision for, in Massachusetts Bay, 
 10. 
 
 Deputy-governor. See Lieutenant- 
 Governor. 
 
134 
 
 INDEX 
 
 Direct legislation, form of, in Ply- 
 mouth, s; provision for use of, by 
 General Court, 64-65. 
 
 Direct primary, nomination by, 77- 
 78. 
 
 Discipline, maintenance of, in the 
 Legislature, 122-123. 
 
 Dudley, Joseph, first Royal Governor 
 of Massachusetts, 11; vetoes elec- 
 tion of Speaker, 14. 
 
 East India Company, charter granted 
 
 to, by Elizabeth, 7. 
 Elections, annual, attempt to change, 
 
 63. 
 
 England, impeachment of officials in, 
 68. 
 
 Engrossment, of bills, 116-1x7. 
 
 Everett, Edward, defeat of, for gov- 
 ernor, 73. 
 
 Explanatory Charter. See Charters. 
 
 Extradition, power of governor for, 
 86-87. 
 
 Faneuil Hall, impeachment proceed- 
 ings held in, 68. 
 
 Finley, J. H., and Sanderson, J. F., 
 The American Executive and Execvr- 
 live Methods, 66 n. 
 
 Fiske, John, Beginnings of New Eng- 
 land, 10 n. 
 
 Foss, Eugene N., Governor, vote re- 
 ceived by, without party nomina- 
 tion, 77. 
 
 Freemen, composed only of church 
 members, 7; selection of assistants 
 by, 7-8. 
 
 Frothingham, Richard, Life and 
 Times of Joseph Warren, 75 n. 
 
 Gage, General, answer to speech of, 
 
 by Council, 17. 
 Gardner, Henry J., Governor, action 
 
 of, in removal of Judge Loring, 35- 
 
 37- 
 General Court, origin and early 
 powers of, in Plymouth, 4; election 
 of Governor and Assistants by, 8; 
 division into two bodies in Massa- 
 chusetts Bay, g-n; election, 
 meetings, and powers of, under 
 Province Charter, 12-14; power of 
 adjournment of, 14, 69-70; dis- 
 solution of, in 1774, 18; resplution 
 of, in 1779, relating to a new con- 
 stitution, 25; first meeting of, 
 under Constitution of 1780, 27-28; 
 annual sessions provided for, by 
 Constitution, 30; power of, to 
 declare martial law and to suspend 
 writ of habeas corpus, 31-32; re- 
 moval of judges by address, 32-39; 
 amendments relating to election of 
 members of, 42-43; present basis 
 of election for, 42-43; proposed 
 limitation as to length of sessions 
 of, S3; reason for name of, 60; 
 original provisions for, 60-61; 
 changes made in, by various 
 amendments, 61-65; annual elec- 
 tions to and sessions of, 63; powers 
 of, 63-65; constitutional privileges 
 of, 65-66; impeachment power of, 
 66-67; incompatibility of sitting 
 in, with holding a state office, 70; 
 messages of governor to, 78; power 
 of, in appointing to civil offices, 80; 
 veto power of governor over bills 
 passed by, 81-83; right of, to re- 
 quire judicial opinions, 83-84; 
 legislative procedure in, go-126; 
 rules of, in regard to introducing 
 bills, 92-94; committees of, 96- 
 105; officials and employees of, 
 97-98; pay for members of, 100; 
 joint conventions of, 105-106; 
 
INDEX 
 
 I3S 
 
 choice of presiding officers in, 119- 
 121; absence of officers and mem- 
 bers from, 1 21-122; maintenance 
 of discipline in, 122-123; rule of, 
 against members serving their 
 private interests, 123-124; dis- 
 couraging of special acts in, 126; 
 final rejections of bills in, 126-128. 
 See also House of Representatives, 
 Senate. 
 
 General laws, 11S-119. See also 
 Laws. 
 
 George, King, explanatory charter 
 granted by, 14. 
 
 Gordon, WiUiamj History of tlie 
 American Revolution, 75 n. 
 
 Governor, office of, first definition of 
 powers of, 4; under the Colony 
 Charter, 6; selection of, by General 
 Court, 8; right to elect abolished 
 by Province Charter, 11; powers 
 of, under Province Charter, 11-14; 
 right to veto election of Speaker 
 and Councillors, 14; position and 
 influence of provincial, 15-16; rela- 
 tion of, to assembly, 16-17; provi- 
 sion for election of, in Constitution, 
 29-30; abolition of property quali- 
 fication for holding office of, 53-54; 
 impeachment of, 66-67; qualifica- 
 tions for office of, 73-74; term of, 
 73; vote required for election of, 
 73-74; title of, 74; nomination of 
 candidates for, 74-78; duties and 
 powers of, 78-88; appointments 
 and removals made by, 79-81; 
 veto power of, 81-83; "glit o^j to 
 require judicial opinions, 83-84; 
 power of, to pardon, 85; extradi- 
 tion power of, 86-87; exemption 
 of, from writs of mandamus, 87-88; 
 incompatibility of offices, 88; ap- 
 proval o£ bills by ,f lie- 
 
 Governor's Council. See Coundl. 
 Greenleaf, William, impeachment of, 
 68. 
 
 Habeas corpus, provision in Consti- 
 tution against suspension of writ 
 of, 31-32. 
 
 Hancock, John, election as Speaker 
 vetoed by Governor Hutchinson, 
 14; election of, as president of 
 Provincial Congress, 18; length of 
 office of, as governor, 73; election 
 of, as governor, 74. 
 
 Harvard College, sessions of General 
 Court held in chapel of, 16-17; 
 first constitutional convention held 
 adjacent to, 25; rejection of amend- 
 ment to Constitution concerning, 
 4S; early prohibition of officers of, 
 from sitting in General Court, 70. 
 
 Hazard, Ebenezer, Historical Collec- 
 tions, 3 n. 
 
 Hilliard, G. S., on tenure of judges, 
 S6-S8. 
 
 Hingham, number of representatives 
 from, proposed by Constitution of 
 
 1853, SS- 
 House of Representatives, appor- 
 tionment of, under proposed Con- 
 stitution of 1853, 53-55; original 
 provision for, 60-61; changes made 
 in election to, 61-62; constitutional 
 privileges of members of, 65-66; 
 part of, in impeachments, 66-68; 
 right of, in originating money bills, 
 69; right of, to adjourn, 69-70; 
 incompatibility of office in, 70-72; 
 power of, to pass over governor's 
 veto, 81-82; assignment of seats 
 in, 98-99; meeting of Joint Con- 
 ventions in, 105; procedure of, in 
 connection with bills for raising or 
 appropriating money, 108-109; 
 
136 
 
 INDEX 
 
 roll-calls in, 111-112; method of 
 choosing presiding ofiScer of , 119- 
 121; maintenance of discipline in, 
 122-123. S^ o^^o General Court. 
 
 Hunt, William, impeachment of, 68. 
 
 Hutchinson, Thomas, History of the 
 Province of Massachitsetts Bay,8n., 
 16 n.; as Chief Justice of Superior 
 Court, 9; as Governor, vetoes se- 
 lection of Speaker, 14. 
 
 Impeachment, of state officers, 66- 
 67; definition of, 67; of Governor 
 Sulzer, 67; method of, in Massa- 
 chusetts, 67-68; cases of, in Massa- 
 chusetts, 68; difference in practices 
 of, 68-69; lack of power to pardon 
 in cases of, 85. 
 
 Incompatible offices, constitutional 
 provisions against holding of, 70- 
 7 2 ; in connection with federal posi- 
 tions, 71; as applied to governor 
 and lieutenant-governor, 88. 
 
 Initiative. See Direct legislation. 
 
 Ipswich Convention, 23. 
 
 James II, first royal government of 
 Massachusetts founded by, 11. 
 
 Jameson, J. A., Treatise on Consiilti- 
 tional Convention, 50 n. 
 
 Jameson, J. F., Introduction to the 
 History of the States, 22 n. 
 
 Johnson, Andrew, impeachment of, 
 67. 
 
 Judges, removal of, by address, con- 
 stitutional provision for, 32-39; 
 working of the provision for, 
 34-38; precedent for, in England, 
 37-38; relation of, to judicial recall, 
 38-39; rejection of amendment 
 concerning, 43-44; proposal to 
 limit tenure of, 56-58; incompati- 
 bility of office of, 70-72; right of 
 
 governor and council to require 
 opinions from, 83-84. 
 Jury, provision for, in 1623, 5; provi- 
 sion for trial by, in Massachusetts 
 Bay, 8. 
 
 Laws, enactment of, in Plymouth 
 Colony, 4; procedure for, 90-126; 
 filing petitions and bills, 90-91; in- 
 troduction of bills, 92-94; Com- 
 mittee on Rules, 94-96; reference of 
 bills to committees, 96-97; selec- 
 tion of legislative committees, 97- 
 98; Standing and Joint Standing 
 Committees, work of, 98-100; 
 consideration of measures by com- 
 mittees, loo-ios; reporting of 
 bills, 106-108; special procedure 
 for appropriating or raising money, 
 108-109; stages in passing bills, 
 109-116; votes and roll-calls, III- 
 113; Committee on Bills in Third 
 Reading, 113-115; suspending the 
 rules to expedite bills, 115-116; 
 engrossment of bills, 116-117; bills 
 and resolves, 117-118; general and 
 special laws, 11S-119; miscella- 
 neous points in procedure, 119-126; 
 method of choosing presiding offi- 
 cer, 119-121; absences, 121-122; 
 maintenance of discipline, 122-123; 
 where private interests are con- 
 cerned, 123-124; deciding points 
 of order, 124-126; discouraging 
 special acts, 126; final rejections, 
 126-127. 
 
 Legislature. See General Court, 
 House of Representatives, Senate. 
 
 Lieutenant-Governor, office of, under 
 Colony Charter, 6; under Province 
 Charter, 11-12; under Constitution 
 of 1780, 30; proposal to abolish 
 property qualification for, 53; posi- 
 
INDEX 
 
 137 
 
 tion of, in case of governor's im- 
 peachment, 67; vote necessary for 
 election of, 73-74; duties of, in 
 connection with governor, 78; in- 
 compatibility of office, 88. 
 Loring, Judge, removal of, by address, 
 34-37- 
 
 Macdonald, William, Documentary 
 Source Book of American History, 
 6 n., II n. 
 
 Magistrates, Court of, in Massa- 
 chusetts Bay, 8. 
 
 Maine, becomes a part of Massa- 
 chusetts, 12; election of councillors 
 from, 12; separation of, from Mass- 
 achusetts, 40. 
 
 Mandamus, exemption of governor 
 from writs of, 87-88. 
 
 Mandatory constitutional conven- 
 tions, proposal for, 54. 
 
 Martial law, limitation of, by Con- 
 stitution of 1780, 31-32. 
 
 Mary. See William and Mary. 
 
 Massachusetts Bay, Province of, first 
 charter granted for, 6; Colony 
 Charter of, 6-7; Charter of 1628, 
 7-8; early courts of, 8-1 1 ; Prov- 
 ince Charter of, 11-17. 
 
 Mayflower compact, 3. 
 
 Merchants Adventurers, charter 
 granted to, in Flanders, by Edward 
 VI, 6. 
 
 Money bills, definition of, 69; power 
 of General Court relating to, 69, 96, 
 103. 
 
 Monitors, in House of Representa- 
 tives, appointment and duties of,98. 
 
 Morton, Marcus, member of Con- 
 stitutional Convention, 52; term 
 of office of, as governor, 73. 
 
 Munro, W. B., Government of Ameri- 
 can Cities, 64 n. 
 
 New Bedford, unfair representation 
 of, under proposed Constitution of 
 
 1853, SS- 
 
 Newburyport, Ipswich Convention 
 held at, 23. 
 
 New England, Council for, patents 
 granted by, in 1621 and 1629, 3-4; 
 establishment of, in 1620, 3 n. 
 
 Newtown, request of people of, to 
 remove to Connecticut, 10. 
 
 New York State, impeachment of 
 governor in, 67. 
 
 Nomination, of candidates. for office 
 of governor, 74-78; early methods 
 of, 76; by caucus, 76; by Legisla- 
 ture, 76; by convention, 76; rela- 
 tion of parties to, 77; by petition, 
 77; by direct primary, 77-78. 
 
 Notaries, election of, 79; right of 
 women to serve as, 80. 
 
 Nova Scotia, becomes a part of 
 Massachusetts, 12; election of 
 councillors from, 12. 
 
 Oaths, of office, provision for admin- 
 istering, under Province Charter, 
 
 13-14- 
 
 Offices. See Incompatible Offices. 
 
 Oliver, F. S., Life of Alexander Hamil- 
 ton, 39 n. 
 
 Order, decision of points of, in Legis- 
 lature, 124-126. 
 
 Pairing, of votes, in Legislature, 112. 
 
 Pardon, power of, taken from gov- 
 ernor by assembly, 16; present 
 power of governor to, 85. 
 
 Parliament, Act of, in 1774, concern- 
 ing appointment of coimdllors and 
 jurors, 17. 
 
 Parties, influence of in nominations, 
 77, "I- 
 
138 
 
 INDEX 
 
 Pennsylvania, impeachment of judge 
 in, 68. 
 
 Petitions, for legislation, filing of, 90- 
 91; necessity of breadth in scope of, 
 go-92; signature of, to accompany 
 a bill, 92-93; consideration of, by 
 Committee on Rules, 94-96; deci- 
 sion of points of order relating to, 
 1 24. See also Sills. 
 
 Pilgrim Colony. See Plymouth 
 Colony. 
 
 Pittsfield, agitation in, for a state 
 constitution, 20. 
 
 Plymouth Colony, beginnings of 
 government in, 3; establishment 
 of General Court in, 4; provision 
 for governor and assistants in, 4; 
 enactment of laws in, 4; courts of, 
 S; first division into counties, s; 
 end of, 5-6; made a part of Massa- 
 chusetts, 12. 
 
 Plymouth County, in Plymouth 
 Colony, 5; question of removing 
 site of Registry of Deeds in, 126- 
 127. 
 
 Poll tax, abolition of, as qualification 
 for voting, 62. 
 
 Prescott, James, impeachment of, 68. 
 
 President, of the Senate, power of, in 
 referring bills to committees, 96; 
 appointment of legislative com- 
 mittees by, 97; salary of , 100; ap- 
 pointment of Recess Committees 
 by, 103; of Committees of Con- 
 ference by, 105; as presiding officer 
 over Joint Conventions, 105; sign- 
 ing of bills by, 116; method of 
 choosing, 119-121; absence of, from 
 duties, 121-122; decision of points 
 of order by, 125-126. 
 
 Presiding officer. See General Court, 
 Speaker, President of Senate. 
 
 Privy Council, appeal to, granted in 
 
 certain cases by Province Charter, 
 
 13- 
 Property qualification, abolition of, 
 for offices of governor and lieu- 
 tenant-governor, S3-SS; for voting, 
 
 S3-SS. 62- 
 
 Province Charter, of Massachusetts, 
 11-17; provision in, for selection of 
 state officers, 11-12; distribution 
 of powers under, 13-14; import- 
 ance of, 14-15- 
 
 Provincial Congress, provision made 
 for, 18; organization and president 
 of, 18. 
 
 Quorum, in legislature houses, 63; 
 prevention of absence for, 122. 
 
 Recall, of judges, relation of, to re- 
 moval by address, 38-39. 
 
 Referendum. See Direct legislation. 
 
 Reinsch, P. S., American Legislatures 
 and Legislative Methods, 128. 
 
 Removal, of judges by address, 32- 
 39; from office, power of governor 
 in, 80-81. 
 
 Representatives. See House of Rep- 
 resentatives. 
 
 Resolves, 117-118. 
 
 Roll-calls, in House and Senate, 111- 
 112, 121. 
 
 Roosevelt, Theodore, opinion of, as to 
 removalof judges, 33; failure of, to 
 gain election without party nomi- 
 nation, 77. 
 
 Rules, Committee on. See Com- 
 mittees. 
 
 Salem, settlement of, imder Charter 
 of 1628, 7; dissolution of session of 
 General Court in, 18. 
 
 Sanderson, J. F. See Finley, J. H. 
 
 Secretary, direct election of, S3, S4- 
 
INDEX 
 
 139 
 
 Selectmen's Court, $. 
 
 Senate, proposal to change basis of 
 election to, 53, 545 original provi- 
 sion for, 61; changes made in elec- 
 tion to, 61-62; constitutional 
 privileges of, 65-66; part of, in 
 impeachments, 66-68; right of, in 
 connection with money bills, 69; 
 right of, to adjourn, 69-70; special 
 procedure of, in connection with 
 bills involving money, 108-109; 
 roll-calls in, 111-112; method of 
 choosing presiding officer of, 119- 
 121. See also General Court. 
 
 Sessions, annual, of Legislature, 63. 
 
 Shaw, Lemuel, view of, concerning 
 the removal of judges in Massa- 
 chusetts, 34. 
 
 Shays's Rebellion, 28. 
 
 Shute, Samuel, Governor, veto of 
 election of Speaker by, 14. 
 
 Signing, of bills, 116. 
 
 Speaker, of the House of Represen- 
 tatives, right to negative dection 
 of, 14; power of referring bills to 
 committees, 96; appointment of 
 legislative committees by, 97; of 
 monitors, 98; salary of, 100; ap- 
 pointment of Recess Committees 
 by, 103; of Committees of Con- 
 ference by, los; signing of bills by, 
 116; method of choosing, 119-121; 
 absence of, 121-122; maintenance 
 of discipline by, 122; powers of, 
 in deciding points of order, 125- 
 126. 
 
 Special laws, distinguished from gen- 
 eral, 118-119; discouragement of, 
 126. 
 Standfast, Silas. See HilUard, G. S. 
 Standing committees. See Commit- 
 tees. 
 Stimson, F. J., Federal and State Con- 
 
 stitutions of the United States, 30 n., 
 83 n.-84 n. 
 
 Stoughton, proposal of, for state 
 constitution, 20. 
 
 Suffrage, qualification for, under 
 Province charter, 13. 
 
 Sulzer, William, Governor, impeach- 
 ment-case of, 67. 
 
 Sumner, Charles, member of Consti- 
 tutional Convention, 52. 
 
 Supreme Court, provision in Consti- 
 tution requiring opinions of, 30, 
 83-84; rejection of amendment 
 regarding, 44-45- 
 
 Suspension, of rules, to expedite pas- 
 sage of bills, 115-116. 
 
 Taxation, power of General Court in 
 
 relation to, 63-64. 
 Town meetings, prohibition of, in 
 
 1774 by Parliament, 17. 
 Treasurer, direct election of, 53, 54. 
 Treaty rights, relation of state laws 
 
 to, 88-89. 
 
 Vacancies, filling of, in state offices, 
 62-63. 
 
 Veto power, first provision for use of, 
 by governor, 11; in connection 
 with election of Speaker and coun- 
 cillors, 14; of governor, 81-83, 9°- 
 
 Votes, taking of, in General Court, 
 111-112. 
 
 Voting, abolition of property quali- 
 fication for, S3, S4-SS. 62- 
 
 Voting machines, use of, permitted by 
 amendment, 65. 
 
 Walton, Colonel, dismissal of, in 
 1722, by assembly, 15-16. 
 
 Warren, Joseph, selection of, as pres- 
 ident of Provincial Congress, 18. 
 
 Watertown, protest by citizens of, 
 
140 
 
 INDEX 
 
 leads tx> division of General Court, 
 9-10; meeting-place of Provincial 
 Congress, 18. 
 
 Webster, Daniel, in connection with 
 removal of judges, 33-34, 44; posi- 
 tion of, on subject of amending the 
 Constitution, 46, 48-49. 
 
 William and Mary, charter granted 
 by, for Massachusetts Bay Prov- 
 ince, 6, II. 
 
 Willoughby, W. W., Constitutional 
 Law in the United States, 89 n. 
 
 Wilson, Henry, member of Constitu- 
 tional Convention, 52. 
 
 Winthrop, John, Governor of Salem, 
 
 7- 
 Women, right of, to serve as justices 
 
 and notaries, 80. 
 Worship, public, amendments as to, 
 
 rejection of, 41; adoption of, 51,