referred to a committee of which Josiah Quincy, the future president of the University, was chairman. He reported no alteration expedient, and argued that the college charter of 1642 was inviolable, even by constitutional amendment. This did not satisfy the Convention, which appointed a committee of five to inquire into and report upon the constitutional rights and privileges of the college, and the state of the donations made it by the Commonwealth. The report of this committee, signed by Daniel Webster, gave a brief account of the college funds and donations, which turned out to be unexpectedly small, and confirmed the statement of Josiah Quincy regarding the sanctity of the charter. Having asked and obtained the requisite consent from the college corporation and board of overseers, the committee recommended that Article V of the State Constitution be amended by opening the clerical places on the board (then confined to ministers of Congregational churches) to ministers of every denomination of Christians. This was accordingly adopted as Proposition No. 10, which the people rejected by an unaccountably heavy vote, Suffolk County alone being in favor.

The Eleventh and Twelfth Propositions, adopted as Amendments VI and VII, substituted a single oath of allegiance to the Commonwealth of Massachusetts for the complicated politicoreligious oaths of office in Chapter VI, Article I. Like other questions involving religion, this one caused considerable discussion on both sides, several members being in favor of retaining the old tests. "We have agreed," states the Convention's address, "that the declaration of belief in the Christian religion ought not to be required in the future; because we do not think the assuming of civil office a suitable occasion for so declaring; and because it is implied, that every man who is accepted for office, in this community, must have such sentiments of religious duty as relate to his fitness for the place to which he is called."

The Thirteenth Proposition, ratified as Amendment VIII to the Constitution, prohibited certain pluralities overlooked in 1780, as well as the holding of certain Federal and State offices by the same person.

The Fourteenth Proposition, adopted in Amendment IX, provided the regular system of amending the Constitution

which is still in force. It differed from the original form in Daniel Webster's committee report in that the latter required the assent of "two-thirds of the members of both houses" to propose an amendment, and a "majority of the qualified voters" to ratify it. This last requirement was struck out, for it would have made the amendment of the Constitution practically impossible. Webster also consented to substitute a 'majority of the senators and two-thirds of the house of representatives present and voting thereon" for the first part, Quincy and Austin opposing, Lincoln and Varnum supporting the chairman.

66

After the returns had been duly corrected and certified by the Convention's committee, Governor Brooks, on June 5, 1821, declared the first nine amendments to the Constitution adopted. The Convention of 1820, then, was a success. Nine of its fourteen propositions were immediately adopted, and three others were substantially adopted within the next twenty years. Furthermore, the door for all future amendments was opened by Amendment IX. But the ostensible reason for summoning the Convention, the difficulty over the Senate, following the separation of Maine, was almost overlooked by the Convention itself, and finally incorporated in a proposition that the people refused to accept.

3. PERIOD 1821-1850.

The first two amendments to the Constitution adopted under Article IX were of the highest importance. Amendment X (1831) was the same as Proposition No. 2 of the Convention of 1820. It altered the beginning of the political year from the traditional last Wednesday in May to the first Wednesday in January, where it still remains, and placed all the State elections for the first time on the same date, the second Monday in November. Amendment XI, adopted in 1833, withdrew State support from the churches. It permitted religious societies to tax their own members (a right finally withdrawn by Chapter 419, Laws of 1887), but defined members in such a way that an equality of sects was established, and church separated from State. All the unwilling members of the old Congregational parishes were now permitted to withdraw their membership at will, and not required to join any other parish.

"And no

person shall hereafter be made . . . a member of any parish or religious society, so as to be liable to be taxed therein for the support of public worship . . without his express consent for

that purpose first had and obtained." 1

In the meantime the old system of representation was becoming more and more unsatisfactory, leading to an abortive movement for a constitutional convention that merely complicated matters, and finally to the Convention of 1853.

The size of the House of Representatives ebbed from its high mark in 1812, when the act paying members' salaries out of the State treasury was repealed. During the next decade it fluctuated between 160 and 398. As long as the expense of membership fell on the towns, they exercised their franchise sparingly and irregularly. When the public treasury again undertook the burden, the size of the House again passed 600, the session lengthened out, and annual expenses increased fivefold.

This condition of affairs became almost an annual subject of unfavorable comment in the Governor's message, and of agitation in the press and the General Court. If a remedial amendment passed the Legislature, it stimulated the small towns to send enough members to the next Legislature to prevent its getting before the people. A new constitutional convention seemed the only remedy.

On January 10, 1833, the House ordered a committee to consider the propriety of taking the sense of the people on holding a convention to amend that part of the Constitution relating to representation. A week later Robert Rantoul, chairman of the committee, reported in favor of it. He was strongly of the opinion that the House could never be persuaded to adopt a reform that would cost some of its members their places. And if a constitutional convention is authorized "it will be inexpedient to attempt to impose any restriction upon its deliberations. The whole Constitution must pass under revision. The present time is exceedingly favorable to a calm consideration of this important subject, and that further delay may bring us to a period of strong party feeling, and of great political excitement . . when amendments of the Constitution will be

1 Partly quoted from the act of April 1, 1834, which was passed to carry out the purpose of Amendment XI. The vote on this amendment was 32,234 to 3,372, the largest relative majority for any constitutional amendment ever ratified in Massachusetts.

attempted under less favorable circumstances than at present." A bill similar to that of 1820 was submitted with the report.1 In the meantime the House had requested the justices of the Supreme Judicial Court to give their opinions on two questions: First, whether an act of the Legislature which should provide for taking the sense of the people on holding a convention for revising some specified part of the Constitution could restrain such convention from proposing amendments to other parts of the Constitution? Second, can any specific amendment to the Constitution be made in any other manner than that prescribed in Amendment X? Chief Justice Shaw and Justices Putnam, Wilde, and Morton replied on January 24, 1833, that under the Constitution the second question must be answered in the negative. As to the first, a constitutional convention, being extra-constitutional, would derive all its power from the popular vote, and be bound by its terms.2 The justices, it will be noted, expressed no opinion on the question whether a convention might be called for a general revision, as the committee proposed. After the opinion was delivered, the bill in question passed a second and a third reading, but was then indefinitely postponed.

3

The convention question came up again in 1834. A bill was proposed that year, in defiance of the opinion of the justices, proposing to limit the competency of the convention on whose summons the sense of the people was asked to amending the articles of the Constitution on representation. This bill was indefinitely postponed on March 13, by a vote of 183 to 128, and the convention movement slumbered fifteen years.

4

The reform of the representative system by a single amendment was again attempted. The Legislatures of 1835-1836 passed Amendment XII, which was ratified the same year, the first reform in representation since 1780. The old unit of representation and mean increasing number were doubled. Towns having less than 300 ratable polls could either elect a

1 House Document No. 11, 1833.

26 Cushing, 573, House Document No. 17, 1833.

3 The Rhode Island opinion of 1833 (14 R. I. 649) is the unique authority for the view that a convention cannot be called without special provision in the Constitution for it, a view contrary to the general practice of the States. Over thirty constitutional conventions have met in the United States without any authority in the constitution for their assembling.

4 House Document No. 67, 1834; House Journal for 1834, 433.

representative at stated intervals (see Paragraph 2 of the amendment), or combine with other towns to form a representative district, — an opening wedge for the direct system.

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But Amendment XII did not reduce the membership of the House below 500, and hence led to Amendment XIII in 1840, which substituted inhabitants for ratable polls as a basis of representation, and made other changes in the system which satisfied nobody. The existing senatorial districts were made permanent, and Senators were assigned to them according to the number of inhabitants. The old property apportionment, which John Adams and Theophilus Parsons considered a necessary balance in a republic, was abolished. Amendment XIII also adopted the system of electing the Council recommended by the Convention of 1820, and abolished property qualifications for Councillors, Representatives, and Senators.

4. THE CONSTITUTIONAL CONVENTION OF 1853.

(a) Origin, 1850-1853.

The Constitutional Convention of 1853 arose mainly out of dissatisfaction with the system of representation, and was promoted by a new dispensation in State politics. At the elec tion of 1850 the Democratic party and the Free-Soil party, or "Conscience Whigs," formed a working agreement known as the "Coalition," which prevented the Whig candidate for Governor from polling a majority, secured control of the Legislature, elected the Democratic candidate (George S. Boutwell) Governor, and sent a Free-Soiler (Charles Sumner) to the United States Senate. The strength of the Coalition lay in the interior of the State, which was becoming somewhat apprehensive of the growth of the manufacturing towns, and their consequent growth of representation under Amendment XIII. Another source of dissatisfaction was the fact that the larger counties and cities, as well as the smaller counties and towns, elected their Senators and Representatives on a general ticket. Middlesex County and Boston, both strong Whig units, could be depended upon to elect six Whig Senators and forty-five Whig Representatives every year.

Governor Boutwell called attention to these "inequalities" of representation in his inaugural message of January, 1851.