The Massachusetts Constitutional Convention of 1853 met in order to consider changes to the Massachusetts Constitution. This was the third such convention in Massachusetts history held by delegates selected for the purpose: the first, in 1779–80, had drawn up the original document, while the second, in 1820–21, submitted a number of articles to a popular vote, resulting in the adoption of the first nine amendments and the rejection of a number of other proposals. Since 1853, Massachusetts has had one subsequent constitutional convention, in 1917–18.
Contents
Background
George S. Boutwell was inaugurated Governor in January 1851. This "marked the beginning of a determined drive for the elimination of the 'inequalities' in the system of representation." A joint committee on representation of the Massachusetts General Court recommended an amendment giving smaller towns an unfair advantage over the larger ones, and it failed to reach the required two-thirds majority in the House. However, the drive for reform persisted, and a Senate bill provided that the people be asked whether they wished for a constitutional convention. The bill passed, but on November 10, 1851 the idea of a convention was rejected by a vote of 65,846 against to 60,972 in favor.
Undeterred, the Legislature on May 7, 1852 passed "An Act relating to the calling a Convention of Delegates of the People, for the purpose of revising the Constitution". On November 8 of that year, the following question was answered in the affirmative by the voters:
Is it expedient that delegates should be chosen to meet in convention for the purpose of revising or altering the Constitution of government of this Commonwealth?
Delegates to the Convention were elected on March 7, 1853, with each town entitled to the same number of delegates as it had representatives in the Massachusetts House of Representatives.
The Convention
The Constitutional Convention met at noon on Wednesday, May 4, 1853, at the State House in Boston. There were around 420 delegates, though often substantially fewer were actually present for votes. For instance, on a vote taken in the session of July 28, regarding Proposition Number Five, only 165 members–less than half the full body–were present and voting.
There is no record of any oath having been used to swear in the members. Every delegate was male.
On the first day of the convention, a president was elected. Of 394 votes cast, the winner, Nathaniel Prentice Banks, received 250. George N. Briggs got 137 votes, with four others winning one vote each.
Also on the convention's opening day, one man from each county was selected in order to sit on a committee to establish how best to proceed. They reported back two days later with a recommendation of standing committees. These were as follows:
Additionally, during the course of its business, the convention found it expedient to organize Committees on Vacancies; the Adoption of the Principle of Plurality in Elections; the Loan and Credit of the State; Banking Corporations; General Corporations; and on the Order of Business. Finally, although the legislature had abandoned this device some years previous, the convention met several times as a committee of the whole; this allowed it to circumvent some of the cumbersome rules of procedure normally used and to quickly gauge the support of a particular measure. As for petitions, they "could be presented to the Convention only on introduction by a delegate."
Fifteen ministers were in attendance; on the second day of the convention, Rev. Warren Burton was elected chaplain from among these. Of 385 votes cast, he received 224, with Lyman Beecher garnering 129, James D. Farnsworth, 17, and the rest one or two votes apiece.
Other prominent attendees included Charles Sumner, Henry Wilson, Robert Rantoul, Jr., and George N. Briggs.
The convention came up with eight proposals. After 72 days of work, it adjourned sine die on Tuesday, August 2, 1853, at 1:54 am. Before doing so, the Committee on the Pay Roll reported an expense figure of $114,092 for the convention.
Closing speech and proposals
At the convention's closing session, Mr. Boutwell of Berlin addressed a message to the people. He noted that
Up to that point, the Massachusetts Constitution had been amended 13 times, and some of those provisions had rendered parts of the document's original body inoperative. Boutwell asserted that "Constitutional laws should be plain, that they may be impartially interpreted and faithfully executed, 'that every man may at all times find his security in them'".
Proposition Number One
Adopted by the Convention and to be submitted to the people for a vote was a new Constitution overhauling that of 1780. Boutwell enumerated its main points:
Additionally, and this was not mentioned by Boutwell, the constitution provided that the Tuesday after the first Monday in November was to be the state election day, so as to align with the Congressional election day.
Boutwell closed by calling the adoption or revision of a constitution "an epoch in the history of a free people," stating that "We have no doubt that your decision will...under Divine Providence,...render more and more illustrious our ancient Commonwealth."
In addition to the new constitution, seven distinct amendments were proposed, numbered two through eight, as the constitution was number one. They were as follows:
Proposition Number Two
The writ of habeas corpus shall be granted as of right in all cases in which a discretion is not especially conferred upon the court by the legislature; but the legislature may prescribe forms of proceeding preliminary to the obtaining of the writ.
Proposition Number Three
In all trials for criminal offenses, the jury, after having received the instruction of the court, shall have the right, in their verdict of guilty or not guilty, to determine the law and the facts of the case, but it shall be the duty of the court to superintend the course of the trials, to decide upon the admission and rejection of evidence, and upon all questions of law raised during the trials, and upon all collateral and incidental proceedings; and also to allow bills of exceptions. And the court may grant a new trial in case of conviction.
Proposition Number Four
Every person having a claim against the Commonwealth, ought to have a judicial remedy therefor.
Proposition Number Five
No person shall be imprisoned for any debt hereafter contracted, unless in cases of fraud.
Proposition Number Six
All moneys raised by taxation in the towns and cities, for the support of public schools, and all moneys which may be appropriated by the state for the support of common schools, shall be supplied to and expended in no other schools than those which are conducted according to law, under the order and superintendence of the authorities of the town or city in which the money is to be expended; and such moneys shall never be appropriated to any religious sect, for the maintenance, exclusively, of its own schools.
Proposition Number Seven
The legislature shall not create corporations by special act, when the object of the incorporation is attainable by general laws.
Proposition Number Eight
The legislature shall have no power to pass any act granting any special charter for banking purposes, or any special act to increase the capital stock of any chartered bank; but corporations may be formed for such purposes, or the capital stock of chartered banks may be increased, under general laws.
The legislature shall provide by law for the registry of all notes or bills authorized by general laws to be issued or put in circulation as money; and shall require ample security for the redemption of such notes in specie.
Results
On November 11, 1853, the proposals of the Constitutional Convention were placed before the voters. Every single proposal, including the new Constitution, went down in defeat. The results for individual questions are shown below.
The counties of Barnstable, Dukes, Essex, Hampshire, Middlesex, Nantucket, Norfolk, Plymouth, and Suffolk rejected every proposal. On the other hand, the counties of Berkshire, Franklin, Hampden, and Worcester voted in favor of each proposal, with support strongest in Worcester County, which approved each question by a margin of around 13,000 to 7,500. Bristol County was nearly evenly split on the questions, with proposals 1, 2, 4, 5, 7, and 8 carrying by margins of 31, 15, 74, 7, 54, and 35, respectively, while proposals 3 and 6 lost by 115 and 32 votes, respectively.
Analysis of the defeat
Had the convention submitted its proposed changes as individual amendments, "undoubtedly it would have proved a success," as evidenced by the adoption of most of its proposals as amendments in the coming years. The trouble was that it "did not know where to begin and where to end." On the one hand, it left the House of Representatives elected by the same method as before, and representation, since 1780 a contentious issue, "had been the real cause for the convocation of the convention." On the other hand, it took the radical step of reducing judges' terms from life to ten years for the SJC and Court of Common Pleas and three years for probate judges. This change "was too much; it brought down a veritable storm of excoriation upon the convention and its work, and resulted in the flat rejection of the whole."
Partial vindication
Although its ambitious proposals were all rejected, the convention's work was not for nothing. A series of constitutional amendments passed over the next few years incorporated many of the same changes into the Constitution.
Amendments XIV through XIX have a clear "post-convention" character to them, having been adopted by the 1854 and 1855 Legislatures and approved by the people on May 23, 1855.
Amendments XXI and XXII also bear the stamp of the convention's influence; they were adopted by the 1856 and 1857 legislatures and approved by the people on May 1, 1857.
Finally, Amendment XXXIV, adopted by the 1891 and 1892 legislatures and approved by the people on November 8, 1892, abolished the property requirement for Governors and Lieutenant Governors.