Abstract
This chapter provides a brief overview of the founding of the colony, from the Mayflower Compact signed by the Pilgrims in 1620, to the Massachusetts Bay Colony’s Body of Liberties, to the state’s first (and only) constitution in 1780. It describes how the state’s voters rejected an earlier constitution, in large part because it did not include a declaration of rights. It discusses the critical role that John Adams played in drafting the declaration. By the time Massachusetts adopted its declaration, in 1780, it had the declarations of six other states to use as models. A number of the provisions in the Massachusetts declaration resemble Pennsylvania and Maryland, but with key changes that are noted. A replication of and notes on the declaration of rights and relevant rights provisions in the frame of government is provided.
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Notes
- 1.
William Bradford, Of Plymouth Plantation, 1620–1647, ed. Samuel Eliot Morison (1952; reprint, New York: Knopf, 2002[1651]), 39. The Plymouth Colony was a “particular plantation,” a device created by the Virginia Company in which investors would receive an allotment of land in exchange for shares purchased in the company and for settlers they brought to the territory. Lorena S. Walsh, Motives of Honor, Pleasure, and Profit: Plantation Management in the Colonial Chesapeake, 1607–1763 (Chapel Hill: University of North Carolina Press, 2010), 39–41. Adventurers had a “free hand in administering their enterprises,” so long as their regulations “were not contrary to the laws of England or to the general orders of the Company.” Ibid., 39, 40.
- 2.
Bradford, Of Plymouth Plantation, 75.
- 3.
[Agreement Between the Settlers at New Plymouth] (1620) in Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund, 1998), 31–32. In June 1621, the settlers received a temporary patent from the correct entity, and in January 1629/1630, the colony finally obtained a permanent patent [Plymouth Patent] (1629/1630), Select Charters and Other Documents Illustrative of American History, 1606–1775, ed. William MacDonald (1899; reprint, New York: Macmillan, 1910), 51–53. While some scholars call this document a “charter,” see, e.g., Thorpe, Constitutions, 3:1841, MacDonald notes none of the patents were ever confirmed by the Crown, and the colony never obtained a royal charter. MacDonald, Select Charters, 51.
- 4.
H. Roger King, Cape Cod and Plymouth Colony in the Seventeenth Century (Lanham, MD: University Press of America, 1993), 171.
- 5.
George L. Haskins, “The Legal Heritage of Plymouth Colony,” University of Pennsylvania Law Review 110 (1962): 848. Harry M. Ward shares that view. Statism in Plymouth Colony (Port Washington, NY: Kennikat Press, 1973), 71. Donald S. Lutz refers to the document as “a candidate for the honor of being the first true written constitution in the modern world.” Colonial Origins, 61.
- 6.
[Pilgrim Code of Law] (1636), in Lutz, Colonial Origins, 62.
- 7.
Ibid.
- 8.
Ibid., 67.
- 9.
Ibid., 62.
- 10.
Much has been made over the centuries about the omission of such a requirement. Ronald Dale Kerr concludes the charter’s exclusion of a particular meeting place was “neither unprecedented nor particularly noteworthy.” “The Missing Clause: Myth and the Massachusetts Bay Charter of 1629,” The New England Quarterly 77, no. 1 (March 2004): 106.
- 11.
The Charter of Massachusetts Bay (1629), in Thorpe, Constitutions, 3:1857.
- 12.
Lutz, Colonial Origins, 70.
- 13.
[Massachusetts Body of Liberties] (1641), sec. 1 in Lutz, Colonial Origins, 71. One of the earliest appearances in the colonies of the law of the land clause, it is derived from Chapter 39 of Magna Carta.
- 14.
Ibid., sec. 12, 72–73. The document also provided that anybody who behaved “offensively” at any town meeting could be sentenced by the rest of the freemen in attendance. Ibid., sec. 56, 78.
- 15.
Ibid., sec. 42, 76.
- 16.
Ibid., sec. 46, 77.
- 17.
Ibid., sec. 95(1), 85.
- 18.
Ibid., sec. 94, 83–84.
- 19.
In addition to the territory of the Massachusetts Bay Colony, the province included what had previously been the Plymouth Colony, as well as Martha’s Vineyard, Nantucket, Maine, Nova Scotia, and New Brunswick.
- 20.
Charter of Massachusetts Bay, 1883.
- 21.
The charter granted suffrage to men who owned freehold having a “value of Forty Shillings per Annũ [Annum] at the least or other estate to the value of Forty pounds Sterl.” Ibid., 1879.
- 22.
Ibid., 1881.
- 23.
Ibid.
- 24.
Samuel Eliot Morison, A History of the Constitution of Massachusetts (Boston: Wright & Potter, 1917), 13.
- 25.
Oscar Handlin and Mary Handlin, eds., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge, MA: Belknap Press, 1966), 18.
- 26.
Ibid., 106–107 (Town of Stoughton), 124–125 (Town of Norton), 152–153 (Town of Concord), 157–158 (Town of Acton).
- 27.
Francis D. Cogliano, Revolutionary America, 1763–1815: A Political History, 2nd ed. (New York: Routledge, 2009), 143.
- 28.
The rejected constitution can be found in Handlin and Handlin, Popular Sources, 190–201.
- 29.
Morison, History of the Constitution, 16. The voters for representatives were limited to free males at least twenty-one years of age who had resided in the town for one year and paid taxes, and specifically excluded “negroes, Indians and mulattoes.” Handlin and Handlin, Popular Sources, 192–193. This expansion was balanced by higher thresholds to vote for senators and the governor (sixty pounds of personal estate—higher than required by the charter), and substantial estates to run for office: 200 pounds for representatives, 400 pounds for senators, and 1000 pounds for governor, with at least half of each amount being real estate. Gary B. Nash, The Unknown American Revolution: The Unruly Birth of Democracy and the Struggle to Create America (New York: Viking, 2005), 296. Nash has referred to the proposed constitution as “by far the most conservative in the North” and claims that only Maryland and South Carolina had more restrictive suffrage and candidate property qualifications. Ibid.
- 30.
Ronald M. Peters Jr., The Massachusetts Constitution of 1780: A Social Compact (Amherst: University of Massachusetts Press, 1978), 19. Had the 129 towns that did not report any returns done so, the defeat would have been even more pronounced.
- 31.
The Call for a Convention, June 1779, in Handlin and Handlin, Popular Sources, 403.
- 32.
Morison, History of the Constitution, 19.
- 33.
In drafting the document, Adams attempted to “balance interest groups by giving the generality of people and those of wealth and status each a place in government.” Nash, Unknown American Revolution, 301.
- 34.
The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts, October 28, 1779, in Journal of the Convention for Framing a Constitution of Government for the State of Massachusetts Bay… (Boston: Dutton and Wentworth, 1832), 192–215. Adams’s original draft has been lost.
- 35.
The address can be found in Journal, 216–221 and Handlin and Handlin, Popular Sources, 434–440.
- 36.
The method of determining approval was problematic. Voting was to be done on an article-by-article basis; proposed amendments by the towns would be addressed by the convention without resubmission to the people. In calculating its approval of each article, the convention added approvals, if amended, with unconditional approvals. Peters, Massachusetts Constitution, 22. Of 290 towns returning votes, only 42 accepted the document without amendment. Nash, Unknown American Revolution, 302. Nash credits the state for being a pioneer in utilizing popular ratification, but claims that through this manipulation of votes, “the results were overturned.” Ibid., 303; see also Stephen E. Patterson, Political Parties in Revolutionary Massachusetts (Madison: University of Wisconsin Press, 1973), 245.
- 37.
See, e.g., N.C. Const. 1776, Art. XLIV; Pa. Const. 1776, sec. 46; Vt. Const. 1777, sec. XLIII. Donald S. Lutz argues that these declarations were not considered part of the constitutions because they had their origin in colonial practice and English common law. Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press, 1980), 63–67.
- 38.
The Massachusetts Constitution has two parts: a declaration of rights (Part I) and a frame of government (Part II). Henceforth, references to Part I will be noted as “Decl.” and references to Part II will be noted as “Const.”.
- 39.
Journal, 92, 120–121, 136. All that is known about the size of the votes is the motions received a second. As qualifications to vote for governor were identical, the amendments would have conferred the right to vote for that office as well.
- 40.
Robert J. Taylor suggests Adams opted for this definition because he thought “polls” constituted a more accurate reflection of the people being represented. “Construction of the Massachusetts Constitution,” Proceedings of the American Antiquarian Society 90, no. 2 (October 1981): 329.
- 41.
See Table 1, pp. 56–58.
- 42.
The frame required the legislature to meet annually (Const. 1780, Ch. I, sec. I, Art. I).
- 43.
Taylor, “Construction of Massachusetts Constitution,” 341. An oath of belief in the Christian religion was required for legislators, council members, and the governor and lieutenant-governor.
- 44.
The language of this provision, closely mirroring the Declaration of Independence’s proclamation that all men are “created equal,” was a modification of Adams’s original language, which declared that all men “are born equally free and independent.” Taylor, “Construction of Massachusetts Constitution,” 334. Although Adams professed that “all men are born to equal rights,” he believed the notion that all men were born with “equal powers and faculties, to equal influence in society, to equal property and advantages through life” to be a gross fraud. Letters to John Taylor of Caroline, Virginia, in Reply to His Strictures on Some Parts of the Defence of the American Constitutions, n.d., in John Adams, The Works of John Adams, Second President of the United States (Boston: Little, Brown and Co., 1851), 6:453–454.
This provision would be tested three years after adoption. In a case for criminal assault by Nathaniel Jennison against a former slave named Quock Walker, Chief Justice of the Supreme Judicial Court John D. Cushing instructed the jury as to the repugnance of slavery in light of the new article:
…whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses) features) [sic] has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal -- and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property -- and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract.
[Charge of the Chief Justice] (1783), in Proceedings of the Massachusetts Historical Society, 1873–1875 (Boston: The Society, 1875), 294. Emancipation was not immediate, but by the 1790 census, not one citizen in Massachusetts claimed to own a slave. Emily Blanck, “Seventeen Eighty-Three: The Turning Point in the Law of Slavery and Freedom in Massachusetts,” The New England Quarterly 75, no. 1 (March 2002): 30. Blanck reports anecdotal evidence that a scattering of people lived as slaves into the 1790s. Ibid., 30–31.
- 45.
Similar to Md. Decl. 1776, Art. XXXIII. The original committee report made worship of the supreme being a DUTY, but not a right. Massachusetts did not expressly declare liberty of conscience a natural right. This article used the term “subject,” one of several using that term (see Decl. 1780, Arts. III, XI, XII, and XIV). Such usage was rare in other early state constitutions. Of the constitutions adopted to that point, only Pennsylvania used that term in only one section (see Pa. Const. 1776, sec. 42). The Massachusetts Historical Society’s annotations on the document note that the term survived the American Revolution and came to mean “a person subject to the laws as distinct from a citizen, who enjoyed political rights.” “The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts, 28 – 31 October 1779,” Founders Online, National Archives, accessed September 29, 2019, https://founders.archives.gov/documents/Adams/06-08-02-0161-0002. [Original source: The Adams Papers, Papers of John Adams, ed. Gregg L. Lint, et al. (Cambridge, MA: Harvard University Press, 1989), 8:236–271]. Douglas Bradburn suggests that social hierarchies well-entrenched in the common law could not easily and immediately be effaced. Remnants of this tradition were reflected in the occasional use of the word “subjects” in state constitutions. The Citizenship Revolution: Politics and the Creation of the American Union, 1774–1804 (Charlottesville: University of Virginia Press, 2009), 11–12.
- 46.
Article III, the only article not written by Adams, was one of the most contentious articles in the constitution. Taylor, “Construction of Massachusetts Constitution,” 331–332. In furtherance of the belief that religion was an indispensable agent for promoting and sustaining the morality of the people, this article mandated government support for “Protestant” teachers—an addition to the committee’s report. The second section empowered the legislature to require compulsory church attendance. The third section provided that the towns, parishes, and religious societies had the right to elect their ministers. The fourth section created multiple establishments of Protestant churches; a citizen could decide to which Protestant church his contribution would go. Alternatively, the contribution could be paid towards the support of the teacher or teachers of the parish or precinct in which the said monies were raised. The convention also added the final paragraph, guaranteeing equal protection of the laws for Christians of all denominations who demeaned themselves peaceably.
For a thorough examination of this article, see John Witte Jr., “‘A Most Mild and Equitable Establishment of Religion’: John Adams and the Massachusetts Experiment,” Journal of Church and State 41, no. 2 (Spring 1999): 213–252. Massachusetts ended government support for religion in 1833, the last state to do so.
- 47.
Similar to Pa. Decl. 1776, Art. III. The Massachusetts provision offered a more specific and far reaching claim than its Pennsylvania counterpart. What accounts for this difference? The Pennsylvania Constitution predated the drafting of the Articles of Confederation, which, by the time of the Massachusetts convention, had been adopted by all states except Maryland. The Articles provided: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Art. II. By asserting the power to do all but what was “expressly delegated” to the federal government, Massachusetts reasserted its right as a sovereign entity to control its own affairs. The provision reflected the deep suspicion of a centralized government that could jeopardize its internal governance in ways similar to those imposed on the colony by the Crown. The Massachusetts ratifying convention for the U.S. Constitution proposed the following amendment: “That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.” Documentary History of the Constitution of the United States of America, 1787–1870 (Washington: Department of State, 1894), 2:94. That proposal was rejected, and an alternative proposal without the word “expressly” became the Tenth Amendment. It came as no surprise that Massachusetts did not ratify the first ten amendments until nearly 150 years after they were proposed.
- 48.
Similar to Pa. Decl. 1776, Art. IV; Va. Decl. 1776, sec. 2.
- 49.
Similar to N.C. Decl. 1776, Arts. III, XXII; Va. Decl. 1776, sec. 4. The language of the Massachusetts Constitution is the most forceful, referring to hereditary privilege as “absurd and unnatural.”
- 50.
Similar to Pa. Decl. 1776, Art. V; Va. Decl. 1776, sec. 3. The article also expressed an unalienable right to alter or abolish a tyrannical government. See p. 49, footnote 29 for other states having alter or abolish clauses.
- 51.
Similar to Pa. Decl. 1776, Art. VI. This article provided an example of a collective right exercised by and belonging to the community—the right to have vacancies filled through either regular elections or appointments, as prescribed in the frame of government.
- 52.
Similar to Pa. Decl. 1776, Art. VII; see also Va. Decl. 1776, sec. 6. The convention removed the word “male” from those inhabitants enjoying the suffrage, presumably to remove from an enduring declaration of principles any specific qualifications for the franchise, which were more appropriate for the frame of government. Taylor, “Construction of Massachusetts Constitution,” 334–335.
- 53.
Similar to Pa. Decl. 1776, Art. VIII; Del. Decl. 1776, sec. 10; Vt. Decl. 1777, Art. IX. Unlike these three other states, this article did not include an exemption from compulsory service for conscientious objectors. The article also protected private property, though this protection was bounded by the community’s power to take that property under specified conditions (i.e., for public purposes and upon payment of reasonable compensation).
- 54.
Similar to Md. Decl. 1776, Art. XVII; Del. Decl. 1776, sec. 12.
- 55.
Article XII preserved the fundamental right to a jury trial by providing that no person may be subjected to criminal punishment or loss of property without the judgment of his or her peers or “the law of the land,” a phrase which dated back to Chapter 39 of Magna Carta. The article also included other rights, viz., the right to be free from self-incrimination, to confront witnesses, to produce proofs and to have counsel in support of his or her defense. Dropped by the convention, the right to a speedy trial has been found in Article XI. Commonwealth v. Hanley, 337 Mass. 384 (1958).
- 56.
Similar to Md. Decl. 1776, Art. XVIII; Del. Decl. 1776, sec. 13.
- 57.
Similar to Pa. Decl. 1776, Art. X. The inclusion of the word “unreasonable” was John Adams’s contribution, his recognition of the need to balance the individual’s liberty to be free from searches and seizures with the need of the body politic to properly enforce its laws and secure the safety of the citizens.
- 58.
Similar to Pa. Decl. 1776, Art. XI. The inclusion of the language “except in cases in which it has heretofore been otherways used and practised”—not present in Adams’s original draft—clarified that the right would not extend beyond its use at the time of adoption. The article also allowed the legislature to alter this “sacred” right in narrowly specified cases.
- 59.
This provision, reflecting the delegates’ acknowledgment that freedom of the press was an indispensable prerequisite of a free society, differed considerably from Adams’s original draft:
The people have a right to the freedom of speaking, writing and publishing their sentiments: The liberty of the press therefore ought not to be restrained.
Had the state retained the protection for freedom of speech, it would have joined Pennsylvania (Decl. 1776, Art. XII) and Vermont (Decl. 1777, Art. XIV). This omission was sharply criticized by the City of Boston. Returns from the Town of Boston, in Handlin and Handlin, Popular Sources, 761–762.
- 60.
This article declared the right to keep and bear arms “for the common defence.” John Adams had previously defended the rights of citizens to smuggle arms into the country in response to attempts by military governor General Thomas Gage to seize firearms from the citizens of Boston and the provinces. Stephen P. Halbrook, “The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts,” Vermont Law Review 10 (1985): 300. Unlike Pennsylvania and Vermont, the article did not grant a specific right to bear arms for individual self-defense, although the individual’s right to bear arms was essential if men were to perform their duty of militia service. See pp. 63-67 concerning the interplay between the militia and the right to bear arms. The hostility towards peacetime armies was manifest in other constitutions as well. See Table 2, pp. 65-66.
- 61.
Similar to Pa. Decl. 1776, Art. XIV. Massachusetts joined the other states in adopting as a constitutional principle the idea that a republican government must be founded on the bedrock of virtue. The virtues listed reflected the close connection made between religion and the political realm that characterized Massachusetts from its inception.
- 62.
Similar to Pa. Decl. 1776, Art. XVI; N.C. Decl. 1776, Art. XVIII; Vt. Decl. 1777, Art. XVIII. The article also protected the right to “give instructions to [the] representatives,” a practice rooted in the colony’s history to 1640 in New England and one which played a meaningful part in the constitutional convention process.
- 63.
Similar to Del. Decl. 1776, sec. 7; Md. Decl. 1776, Art. VII; N.C. Decl. 1776, Art. V; Va. Decl. 1776, sec. 7.
- 64.
Similar to Md. Decl. 1776, Art. VIII.
- 65.
Similar to Md. Decl. 1776, Art. X. To implement this prescriptive, the frame mandated that the general court meet annually and designated the dates when this meeting would occur (Const. 1780, Ch. I, sec. I, Art. I).
- 66.
Similar to Md. Decl. 1776, Art. XII.
- 67.
Similar to Md. Decl. 1776, Art. XV.
- 68.
Similar to Md. Decl. 1776, Art. XVI.
- 69.
Similar to Va. Decl. 1776, sec. 9, Md. Decl. 1776, Art. XXII, Del. Decl. 1776, sec. 16, N.C. Decl. 1776, Art. X. Massachusetts followed the lead of Delaware, Maryland, and North Carolina in using “cruel or unusual” punishment instead of Virginia’s “cruel and unusual” language.
- 70.
Similar to Md. Decl. 1776, Art. XXXVIII, Del. Decl. 1776, sec. 21.
- 71.
Similar to Md. Decl. 1776, Art. XXIX. The requirement for legislative approval, unprecedented when added, reflected awareness on the part of the Massachusetts framers that martial law could be subject to abuse by a rogue executive.
- 72.
Similar to Md. Decl. 1776, Art. XXX. Previously, judges in Massachusetts were subject to competing masters: the 1691 charter gave the royal governor the authority to remove judges without cause, while the general court controlled the salaries of the governor and the judiciary. This tug of war led to a British attempt in 1772 to seize complete control of the judiciary by paying judicial salaries out of revenues drawn from unpopular taxes, leading to the formation of the Boston Committee of Correspondence. By securing tenure and salaries, this article addressed both sources of undue influence on judges.
Extensive debate took place as to whether judicial independence could be best achieved by giving judges lifetime tenure or by making them accountable to the people through elections and short terms of office. To that end, Massachusetts followed the lead of Virginia and Maryland and provided that supreme court judges would hold their offices during good behavior. It also included language, unique to the state, specifically affording the judiciary the right to “impartial[ly] interpet[]” the laws—which Lawrence Friedman and Lynnea Thody claim necessarily required the courts to exercise some form of judicial review. The Massachusetts State Constitution (New York: Oxford University Press, 2011), 97.
- 73.
Although not alone in inserting an explicit separation of powers provision in its constitution, see, e.g., Ga. Const. 1777, Art. I, Md. Decl. 1776, Art. VI, N.C. Decl. 1776, Art. IV, Va. Const. 1776, Massachusetts was the most emphatic in its language. The committee’s version of this article applied only to the judiciary: “[t]he judicial department of the state ought to be separate from, and independent of, the legislative and executive powers.”
- 74.
The drafters of the Massachusetts Constitution, like most states, believed a knowledgeable citizenry to be critical for the success of republican government. They inserted a provision making it the duty of the legislature to “cherish the interests of literature and the sciences.” The section remained mute as to the actions the legislature ought to take to cherish these interests. See the discussion of civic education and republican citizenship pp. 59-61.
- 75.
This section continued all of the previous laws of Massachusetts adopted during the state’s colonial, provincial, and post-statehood periods. The term “laws” was later construed to include the common law. Commonwealth v. Churchill, 2 Met. 118, 123–124 (MA. 1840).
- 76.
Massachusetts was the second state to constitutionalize the writ of habeas corpus, allowing a prisoner to challenge confinement as being improper or illegal. See Ga. Const. 1777, Art. LXI. Long regarded as one of the most efficient and effective safeguards of individual liberty, the writ traces its origins back to the Assize of Clarendon (1166) and the English habeas corpus acts of 1640 and 1679. Conceding there may be conditions justifying its suspension, the framers took steps to ensure such suspensions would not be abused by requiring legislative consent, limiting its use to pressing and urgent situations, and placing a time limit of twelve months on any suspension.
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Galie, P.J., Bopst, C., Kirschner, B. (2020). Massachusetts. In: Bills of Rights Before the Bill of Rights. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-44301-6_10
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