their superior position in the senate. The organization of the legislative branch in the constitution of 1780 embodied a compromise as well as a balance, and not only between property and numbers but also between the large eastern towns and the hundreds of hinterland villages. What the former had gained in the senate had to a considerable extent been off set by the latter’s gain in the house. Everyone in the convention recognized the reciprocity. Dearborn confessed, after the initial acceptance of his resolution on the senate, that he had no idea of making it popular and at the same time leaving representation in the house on a town basis. The other part of his plan, only now introduced, was to apportion representatives according to population in new electoral districts of about 13,000 inhabitants. The plan was thoroughly democratic; even Story conceded its justice. Moreover, it had the merit of skirting the critical problem of a vastly overpopulated house of representatives—five hundred members under the existing system of town representation. This was one of the problems that had brought the convention into being. It had to be solved.
Three solutions were offered. Dearborn’s, of course, simply abandoned the historic representation of the towns, deeply embedded along with the parish and the town meeting in Massachusetts tradition. And this was enough to sink the plan regardless of other considerations. The Worcester leader Levi Lincoln proposed a kind of federal system in reverse—corporate town representation in the house, the whole amounting to 334 members, and a popular senate. By mixing separate principles in the composition of the bicameral legislature, the plan allegedly met the old Whig criterion of balanced government. But the house remained too numerous and the representation grossly unequal. According to the analysis of William Prescott, 169 small towns, less than one-third the entire population, would choose a majority of the house. “Thus the liberties of the majority would be put in subjection to the minority in violation of the principle of every free government.” Obviously something was amiss when a Boston Federalist could appeal to majority rule and equal rights against a Jeffersonian outlander! Lincoln’s plan was buried in the committee of the whole, and he did not later attempt to resurrect it. The convention, by a substantial majority, gave its support to the plan of the legislative committee. Corporate towns of 1,200 inhabitants were to elect one representative, those of 3,600, two, and so on. Over one-half the towns of the state were thus deprived of annual representation; they were permitted, however, to send a delegate every other year or to join with neighboring towns similarly situated to meet the minimum population required. The new system would result in a house not exceeding 275 members. A majority of the delegates of only two counties, Plymouth and Bristol, voted against the revised plan (see Table 1.2).
Of the other issues in the convention, the one touching the independence of the judiciary stirred the most controversy. Story was a fanatic on this point; and as chairman of the judiciary committee, he reported an amendment requiring a two-thirds vote of both chambers, instead of the simple majority of the 1780 constitution, before the executive could remove a judge. The measure failed to pass. But Story gained some small additional protection for judges and single-handedly defeated a motion, reported to the convention from the great committee, empowering the legislature to reduce the salaries of judges. (Unfortunately, his speech on this question, together with the debate, which he described as the most brilliant of the convention, have not been preserved.) As in other states, the common provision of the early constitutions for an executive council to advise or act in concert with the governor gave trouble in Massachusetts. Here, however, since the governor was elective and the council had little authority, the question raised no fundamental issue of executive power and responsibility. The problem was that nine of the councillors (the tenth being the lieutenant governor) were elected from the senate on the joint ballot of the two chambers. This upset the senate; often the senators elected to this fifth wheel of the government declined to serve; and a council adhering to a party opposed to the governor caused disharmony in the executive branch. Reformers wished either to abolish the council or to make it elective of the people. It was retained, however, with a reduced complement of councillors to be elected by both chambers from the people at large. Before finishing its work, the convention wisely added a provision for popular amendment of the constitution, thereby postponing to a far distant day any repetition of their ordeal.
The convention adjourned sine die on January 9, 1821. Since its task was to revise the old constitution, not to frame a new one, the mode of presenting the amendments to the people for ratification was a difficult question. Webster saw the problem clearly, and midway in their proceedings the delegates adopted his resolution for grouping the amendments in distinct articles, so arranged “that, upon the adoption or rejection of any one or more of them, the other parts of the constitution may remain complete, and consistent with each other.” Applying this method, the convention proposed fourteen articles of amendment, which were explained in an “Address to the People.” In accordance with the act calling it into being, the convention directed that these articles be presented for ratification in town meetings by men qualified to vote for representatives in the legislature.
On April 9 the towns voted, the selectmen of each forwarding the returns to an examining committee appointed by the convention. The people approved nine of the articles, including the extension of the franchise, abolition of the test oath, the amendment article, and a stiff ban on plural officeholding. They disapproved of those articles, 1, 2, 5, 9, and 10, that the convention had labored hardest and longest to perfect (see Document 10). Article 1 embodied the revision of the third article; 2 altered the political year and provided for one, instead of two, annual sessions of the legislature; 5 was the article on representation, both house and senate, including the changes in the executive council; 9 contained new safeguards for the judiciary; and 10 confirmed the charter and the historic rights and privileges of Harvard University, except to open its board to clergy of any denomination. This article, in fact, was rejected by the largest majority of all—only Suffolk County favored it—suggesting that the democratic prejudice against Harvard, or perhaps against private corporations generally, ran wide and deep. The representation article also lost by a large majority. An analysis of the vote gives no clue to the reason. Essex returned the largest margin against it; two of the valley counties narrowly approved it.
With respect to the article on religion, however, it seems clear that the nearly 2 to 1 rejection was founded not on opposition to the minor changes proposed but on opposition to its retention in any substantial form. The article encountered strongest opposition in Bristol and Berkshire, whose delegates in the convention had supported the reform minority. Those from Bristol voted 2 to 1 for the Childs substitute, while their constituents voted 17 to 1 against the amended article. The three eastern-most counties returned modest majorities in favor, while the counties from Worcester westward voted 2½ to 1 against it. In all probability the convention’s revision pleased neither side, or any side, in the religious disputes of the commonwealth.
The Massachusetts experiment in state-supported religion deteriorated rapidly during the next decade. A legal system of public worship could not be maintained in a community characterized by a multiplicity of sects and, partly for that reason, by a profound regard for religious liberty. Bowing to the inevitable in 1833, the legislature sent to the people an amendment of the third article, basically the same as Childs had proposed a dozen years before. It was ratified by a majority of 10 to 1. In time, too, the people reformed the political year, altered the system of representation in the house, and placed the senate on a popular base.
The amendment article thus proved to be the most important reform introduced into the Massachusetts constitution in 1821. Democracy expressed itself more effectively through the slower and more cautious amendment process than through the convention medium. At first glance the vote on ratification of the fourteen articles might suggest that the populace was even more conservative than the convention. On closer inspection, however, it is apparent that the people approved the articles that came up to the democratic standard and disapproved those that did not. In general, then, the popular vote expressed a democratic judgment on the work of the convention. Marshaled and controlled by a conservative elite, the convention was a highly successful rearguard action against the advance of democracy. The speeches of Webster and Story, in particular, gave intellectual form and content to the conservative resistance everywhere. Significantly, the North American Review, the Boston quarterly and citadel of New England letters, devoted an article to these speeches, which at once became famous and which remain even today the most memorable features