Constitution of Massachusetts Bay

The Constitution of Massachusetts Bay is the oldest constitution in force in the United Kingdom of America. Its principal instrument is the Province Charter of 1691, granted by William and Mary, which is ninety-two years older than the Charter of Union itself and a hundred and ninety-three years older than the newest of the Realm’s polity instruments.

It is not a single document. The Province’s constitution is the charter read together with the instruments that have accumulated around it: the constitutional recasting of 1775 to 1783, the Acts of the General Court that altered the charter’s own terms, and a body of judicial construction from a court that has been sitting continuously since before the charter was granted. What was deposited with Parliament in 1893, under the Polity Instruments Act 1889, is a consolidation reciting the charter and carrying everything since, and it is the only polity instrument in the Realm whose text opens by reciting documents older than the Union.

The charter has been substantially amended and the amendments are visible: the Province prints its constitution with the altered clauses marked, so that a reader can see the 1691 words, what replaced them, and when. One clause has never been repealed and has been of no effect for two centuries, and the Province prints that too.

Status

A constitution that is a set

Most polity constitutions in the Realm are documents. Massachusetts Bay’s is a set of instruments read together, and the Province regards this as a feature rather than as an untidiness it has failed to resolve.

The set has four elements. The charter of 1691 is the foundation and supplies the structure: a Governor, a General Court of two chambers, courts, a militia and a franchise. The recasting of 1775 to 1783 amended the charter substantially and is where responsible government enters. The constitutional Acts of the General Court, of which there are twenty-nine, alter the charter’s own terms and are distinguished from ordinary legislation only by what they do rather than by any special procedure. And the construction placed on all of it by the Supreme Judicial Court, which is older than the charter it construes and which the Province treats as part of the constitution rather than as commentary upon it.

Nothing ranks any of these above the others. There is no hierarchy, no entrenchment and no provision stating which prevails on a conflict, and the Province’s answer to that objection is that a conflict has not arisen in three hundred and thirty-seven years and that the machinery for resolving one, which is the Supreme Judicial Court, has been available throughout.

The oldest, and the dispute about it

Massachusetts Bay describes its constitution as the oldest in force in the Realm, and the claim is sound on the footing the Province makes it: the Province Charter of 1691 is the oldest instrument anywhere in the Realm that is still the operative constitution of a polity, older than the Charter of Union by ninety-two years and older than the next polity constitution, Ohio’s of 1803, by a hundred and twelve.

Plymouth disputes it, on a different footing, and the two claims do not meet.

The Plymouth Constitution is an instrument of 1874, which is late. Its first article is the Mayflower Compact of 1620, reproduced in its own words and its own spelling and made unamendable by the second article, which makes it by seventy-one years the oldest constitutional text in force anywhere in the Realm. Plymouth makes this claim at every opportunity and is entitled to it.

The distinction, which both provinces understand perfectly and neither concedes in public, is between the oldest instrument and the oldest words. Massachusetts Bay is governed under a document of 1691. Plymouth is governed under a document of 1874 that opens by quoting one of 1620, and the quoted passage has never decided anything. The Bay’s formulation is that a constitution is what governs you and not what you have printed at the front of it. Plymouth’s is that the Bay is welcome to the older grant, since a grant is exactly what it is.

Neither province has ever put the question anywhere it could be answered, and both would regard doing so as bad manners and a bad idea.

Citation

The charter is cited by clause, in the numbering the Province adopted for its printed edition in 1802 and which is not original to the engrossment, so that the fourth clause or the conscience clause is the ordinary form. The constitutional Acts are cited by their short titles and years.

The Province publishes a single official edition, revised whenever a constitutional Act passes, in which the charter’s original words are printed in full and the altered passages are marked: struck where repealed, bracketed where amended, with the amending Act named in the margin. The edition is a legal text and is not a scholarly reconstruction, and the practice of showing the alterations rather than incorporating them dates from 1802 and was a deliberate choice.

The charter of 1691

What preceded it

Massachusetts Bay had governed itself under the Colony Charter of 1629 for more than fifty years, and had governed itself rather further than the charter permitted. The 1629 instrument was a trading company’s charter, granted to a corporation, and the corporation had carried it across the ocean and used it as a constitution, which nobody in London had intended and which the colony had found extremely convenient.

It was vacated in 1684, in the general reassertion of royal authority over the American colonies, and what followed was the Dominion of New England, an appointed governor-general ruling from Boston without an assembly, without the town meetings, and without any instrument the colonists recognised. The Dominion collapsed in 1689 when the news of the revolution in England reached Boston and the governor was arrested by his own subjects.

The charter of 1691 is what the Crown offered instead of restoring the old one, and Massachusetts has never entirely stopped resenting it. The colony’s agents in London had asked for the 1629 charter back. What they were given was a royal province: a Governor appointed by the Crown rather than elected by the freemen, a property franchise in place of a church membership qualification, and liberty of conscience imposed on a colony that had not wanted it.

What the charter did

The charter united the Massachusetts Bay Colony with the Colony of New Plymouth, the Province of Maine, and the islands, into a single royal province called Massachusetts.

It vested the executive in a Governor appointed by the Crown, with a Lieutenant-Governor and a Secretary likewise appointed. It established a General Court of the Governor, a Council of twenty-eight, and a House of Representatives elected by the towns. It provided that the Council should be chosen annually by the General Court itself rather than by the Crown, subject to the Governor’s negative on any councillor. It gave the Governor a negative on all legislation. It required every law to be transmitted to England within three months and permitted the Crown to disallow it within three years. It granted liberty of conscience to all Christians except Papists. It fixed a property franchise. It gave the General Court power to erect courts, and gave the Governor command of the militia.

What it did not do

It said nothing about a ministry, about confidence, about a Premier, about parties, about the Governor being obliged to take anyone’s advice, or about the towns, whose meetings the charter does not mention and which had been governing Massachusetts for sixty years before it was granted and have been ever since.

Almost everything Massachusetts Bay now is arrived in the space the charter left, which is the reason the Province’s constitutional habit is what it is: a polity whose founding instrument describes a government it does not have must be extremely careful about law, because law is the only thing holding the difference together.

The text

The charter is reproduced below in its principal clauses, in the language of 1691, in the numbering of the Province’s official edition. Clauses altered since are given as they stood and the alteration is described in the commentary. Formal recitals, the description of boundaries by metes and bounds, and the provisions concerning admiralty and the customs are summarised rather than set out.

The grant and the union

The union of three colonies into one province is the charter’s first act and is the source of two of the Province’s later constitutional events, since Maine went out in 1820 and Plymouth in 1874, by different methods and with very different feeling. Neither separation altered the charter’s first clause, which still recites the union of territories that are now three polities, and the official edition prints it with a marginal note recording both departures.

The recital of the vacated charter of 1629 is the sentence the Province has always read most carefully. It acknowledges that a previous instrument existed and was taken away by judgment, and it grants the new one as a matter of the Crown’s grace rather than as a restoration of anything, which is precisely what the colony’s agents had argued against and lost.

The Governor and the executive

These are the clauses the recasting of 1775 to 1783 was about, and the fourth of them is the one that was amended.

The charter as granted vests the whole executive power in a Crown appointee answerable to the Crown, exercising it according to his own discretion, with an absolute veto on every act of the legislature. That is a description of the government of a royal province and it is not a description of anything Massachusetts Bay has had since the 1780s. The clause requiring the Governor to exercise the powers according to his best discretion was replaced in 1780 by the words the Province still uses, which oblige the office to act on the advice of a Council responsible to the House of Representatives, save in the cases the constitution reserves.

The negative voice was not amended and is still in the text. What was done to it was done by convention: the Lieutenant-Governor, who is what the office is now called, exercises the negative only on advice, has not refused assent to a measure of the General Court since 1841, and the Province’s constitutional writers describe the power as spent without anybody having repealed it.

The General Court

The Council chosen by the General Court is the charter’s most distinctive provision and the reason Massachusetts Bay’s constitutional history is unlike any other polity’s in the Realm. An upper chamber elected by the lower chamber, rather than by the Crown or by the electorate, was unusual in 1691 and was the single largest concession the colony’s agents obtained: it meant that the Governor’s Council, which advised him and which he could not appoint, was chosen by the people’s representatives, and that the Crown’s own executive council in Massachusetts was elected from below.

It survived until 1855, when the Senate Act made the upper chamber directly elected from districts, and the change is the largest single alteration ever made to the charter’s structure. The Governor’s negative on councillors went with it.

The property franchise at clause 11 was amended twice and repealed in substance rather than in form: the sums were reduced in 1802, the franchise was widened to all male ratepayers in 1857, and the clause was superseded entirely by the American Rights Act’s extension in 1962, which made any property qualification unlawful. The clause is still printed, struck through, with both amending Acts and the 1962 statute noted in the margin.

Disallowance

The disallowance clause is the only substantial provision of the charter that has been repealed outright, and it was repealed in 1848 after a crisis.

The power had fallen into disuse after the Charter settlement of 1783, on the general principle that a Crown which governed the Realm through ministers responsible to an American Parliament had no business disallowing the laws of an American province through a Council sitting in London. It was not formally abandoned, and in 1846 it was used, on the advice of British ministers, against a Massachusetts Bay Act regulating shipping in Boston harbour which had incidentally disadvantaged a British trading interest.

The reaction in the Province and in the Realm was disproportionate to the measure and entirely proportionate to the principle. The General Court refused to accept the disallowance as effective, the Supreme Judicial Court declined to give effect to it, and the federal ministry at New Westminster, which had not been consulted, took the Province’s side. The Charter Amendment Act 1848 repealed the clause with the assent of the Crown, and the episode established the wider proposition that the Crown acts in respect of an American polity on the advice of American ministers and not otherwise, which the Realm had assumed and had never had occasion to state.

Liberty of conscience

The parenthesis is the Province’s standing embarrassment and it has never been removed.

The clause has been of no effect since 1783, when Article IX of the Charter of Union secured liberty of conscience throughout the Realm without qualification, and it has been unenforceable in every sense since long before that. No Massachusetts Bay court has given it effect since the eighteenth century. The American Rights Act has made it unlawful twice over, at section 24 and at section 29, since 1962.

And it is still in the text, printed in the Province’s official edition with a marginal note recording that it is of no effect and naming the instruments that made it so. Repeal has been moved in the General Court eleven times since 1840 and has failed on each occasion, and the reasons given have changed completely across those hundred and eighty years.

The nineteenth-century objections were procedural and are not worth defending: that the charter was a royal grant which the Province could not alter, which was untrue and was known to be untrue by 1848. The modern objection is different and is made most strongly by Catholic members, and it is that a Province whose population is now very substantially Catholic, and which spent two centuries treating that population as a problem to be managed, should not be permitted to tidy the evidence away. The clause is printed, the note is printed, and every reader of the constitution of Massachusetts Bay is told in the document itself that the Province once wrote this down and meant it.

The last repeal motion, in 2011, was defeated by a majority that included most of the Catholic members of the House of Deputies.

The crisis, and what the Province argued

The Realm’s constitutional order turns on what happened between 1774 and 1783, and Massachusetts Bay is where it happened. The Province’s part in it was not military and is not chiefly remembered here for the fighting. It was an argument about a document, made by a province that had one.

The suspension

The measures that produced the crisis reached Massachusetts Bay in 1774 and struck directly at the charter. The Council, which the charter provided should be chosen by the House and the outgoing Council, was made appointive by the Crown. The town meeting, which the charter did not establish but which every town held, was restricted to one meeting a year without the Governor’s leave. Juries were altered. The seat of government was moved from Boston to Salem.

The Province’s response was legal before it was anything else. Its position, stated in resolutions of the General Court and in the towns’ instructions to their deputies, was that these measures were not merely oppressive but void: the charter was a compact between the Crown and the Province, Parliament at Westminster was not a party to it, and no statute of a legislature that had not granted the charter could alter its terms. The Province was not asserting a right of revolution. It was asserting a right of contract.

That distinction is the whole of Massachusetts Bay’s constitutional character and it has consequences that run to the present day. A people asserting a right of revolution needs no document and is better off without one. A people asserting a right of contract needs the contract to exist, to be valid, and to be theirs, and must therefore defend an instrument it did not write and had not wanted.

Governing without the Governor

Between 1774 and 1780 the Province was governed by a Provincial Congress and by its towns, and the constitutional theory of that period is the most examined question in Massachusetts Bay’s historiography.

The Congress did not claim to be a new authority. It described itself as the General Court meeting elsewhere, adopted the charter’s forms, kept the charter’s terms of election, and issued its resolutions in the charter’s language. The Province’s later account is that the constitution was never suspended at all: the Governor had ceased to perform his office, the charter provided that in his absence the Council should execute the government, and the Congress was the Council and the House doing what the fifth and sixth clauses said they should. The theory is strained and was constructed at the time rather than afterwards, which is the Province’s defence of it.

The alternative theory, held by the convention movement and by the western counties, was that the charter had been forfeited by the Crown’s breach and that the Province was in a state of nature and free to constitute itself. That theory lost, in 1778, in the towns.

What the Province wanted

Massachusetts Bay’s terms, as stated in its instructions to its agents and in the Congress’s resolutions, were narrow, specific and consistent: the restoration of the charter as it stood before 1774, the appointment of the Governor on terms the Province could live with, and an acknowledgement that the General Court alone taxed the Province.

It did not ask for independence and it did not ask for a new constitution. What it asked for was that the compact be kept, and the settlement it eventually obtained gave it that and rather more, because the Crown that agreed to keep the charter also agreed to amendments the Province had not thought it could get. The recasting described below is the result.

The recasting, 1775 to 1783

The Realm’s turning point is 1775, and Massachusetts Bay is where it happened. What the Province did between then and the Charter settlement is the reason it has the constitution it has, and the Province’s own account of it is that it amended its charter rather than replacing it, on purpose and against advice.

The alternative

The alternative was available and was pressed. Between 1775 and 1780 there was a substantial body of opinion in the Province, concentrated in the western counties and in the towns, that the charter of 1691 was a royal instrument imposed after the 1629 charter had been taken away, that a people negotiating a new settlement with the Crown should write its own constitution, and that continuing under a grant of William and Mary conceded the very thing the whole dispute had been about.

The convention movement of 1778 is the road not taken. A convention was called, met at Cambridge, and produced a draft constitution founded on the authority of the people of Massachusetts and owing nothing to any charter. It was submitted to the towns and rejected, and it was rejected less on its contents than on its premise: a majority of the towns that returned reasons said, in one form or another, that the Province already had a constitution, that its complaint had never been that the charter was bad but that the Crown had not kept it, and that to write a new one was to concede that the old one had been forfeited.

The Province chose the harder argument. Its position throughout the crisis was that the charter was a compact, that the Crown had broken it, and that the remedy was to make the Crown keep it rather than to make a new one, and that position is the whole of Massachusetts Bay’s constitutional character. It won.

What the recasting changed

The recasting was accomplished by four amendments to the charter, agreed between the Province and the Crown between 1780 and 1783 and confirmed in the Charter settlement.

The Governor’s discretion clause was replaced. The words obliging the Governor to execute the powers according to his best discretion, answerable to the Crown, were struck out and replaced by the words that oblige the office to act on the advice of a Council answerable to the House of Representatives. This is the single most important sentence in the Province’s constitution and it is an amendment to somebody else’s document.

The Governor’s answerability was rewritten. The charter had made him answerable to the Crown alone. The amended clause makes the executive answerable to the General Court for the government of the Province and to the Crown for the Crown’s own prerogatives, which is the distinction the whole Realm now runs on and which was drafted here first.

Taxation was secured. A clause was added providing that no tax, rate or assessment shall be levied within the Province save by Act of the General Court, which is what the entire quarrel had been about and which the charter had left to be inferred.

And the appointment of the Governor was altered, so that the Crown appoints on advice rather than at pleasure, the advice being that of the Realm’s ministers after consultation with the Province.

The offices as they now stand

The charter describes a Governor appointed by the Crown who executes the powers of the Province according to his best discretion. The Province has a Lieutenant-Governor who does nothing on his own initiative and a Premier who governs. Neither office is named in the charter in the form it now takes, and the distance between the document and the government is the Province’s ordinary constitutional condition.

The Lieutenant-Governor

The Crown is represented in Massachusetts Bay by a Lieutenant-Governor, which is the title the Realm’s Provinces use and which Massachusetts Bay arrived at by a route of its own. The charter’s officer is the Governor, and the Province held that title until the Charter settlement, at which point the Realm’s general practice distinguished Provinces from Commonwealths and Massachusetts Bay found itself with a charter naming an office the Realm no longer used.

The Province did not amend the charter. It passed a constitutional Act providing that the officer appointed under the charter’s fifth clause should be styled Lieutenant-Governor, which is why the official edition prints Governor throughout with a marginal note, and why Massachusetts Bay lawyers say the charter Governor when they mean the present officer and are understood.

The office is appointed by the Crown on the advice of the ministers of the Realm after consultation with the Premier, holds during pleasure with a conventional term of five years, and acts on the Premier’s advice in all things save the appointment of a Premier, the granting or refusal of a dissolution, and the dismissal of a ministry that has lost confidence and will not go. Those three exceptions are not in the charter and are not in any Act. They are the Supreme Judicial Court’s construction of the amended fifth clause, stated in 1912 in a case about something else, and they have been the Province’s law ever since.

That is characteristic and is worth pausing on. In Ohio the reserve power is enumerated in the text and in California it was written down in 1962 by a committee that cited Arkansas by name. In Massachusetts Bay it is a judicial gloss on a clause that says the opposite, and nobody has proposed reducing it to writing, because reducing it to writing would require deciding what it is.

No Lieutenant-Governor has refused assent since 1841 or dismissed a ministry ever. Two have refused dissolutions, in 1857 and in 1934, and on both occasions an alternative government was formed within a week and the refusal was afterwards described by everybody as obviously correct.

The Premier

The head of government is the Premier of Massachusetts Bay, who holds office on the confidence of the House of Deputies and appears nowhere in the Province’s constitution at all.

The charter has no such office. The recasting of 1780 created a Council answerable to the House of Representatives and obliged the Governor to act on its advice; the Council became a cabinet by practice, its presiding member became its head by practice, and the title Premier attached to that person by practice in the 1830s and was first used in a statute in 1867 in a section about salaries. There is no instrument in Massachusetts Bay that establishes the premiership, defines it, or says how it is filled.

The Province is entirely comfortable with this and its constitutional writers make a point of it. The argument is that the premiership is a fact about where confidence lies rather than an office to be constituted, that every attempt elsewhere in the Realm to write it down has produced a definition narrower than the practice, and that a Province which has changed government sixty-one times without a dispute about who was entitled to govern has not identified a problem requiring a solution.

The practical consequence is that a Massachusetts Bay Premier’s authority is measured entirely by the confidence of the Deputies and by nothing else. There is no term, no limit, no oath prescribed by any instrument, and no provision anywhere for what happens if a Premier dies in office, which is a gap the Province notes with equanimity and has filled twice by convention within a day.

The General Court

The General Court is the charter’s legislature and has kept its name through every alteration, which Massachusetts Bay regards as the most important thing about it. It is a court in the old sense, an assembly that does justice as well as making law, and the Province’s official style is still the Great and General Court of Massachusetts Bay.

The charter gave it a House of Representatives elected by the towns on a property franchise, and a Council chosen by the House and the outgoing Council together, which sat both as an upper chamber and as the Governor’s executive advisers. That double character is what the recasting of 1780 exploited: obliging the Governor to act on the advice of a body already answerable to the House produced responsible government without inventing anything.

Two Acts made it modern. The Senate Act 1855 separated the Council’s two functions, replacing the upper chamber with a directly elected Senate and leaving the executive Council to become the cabinet. The Representation Act 1857 widened the franchise and renamed the lower chamber the House of Deputies, a name chosen because the charter uses deputies for the men the towns send and because the Province preferred its own word to the Realm’s.

The House of Deputies has two hundred and forty members from single-member districts on population, elected for four years, and holds confidence and supply. The Senate has forty, elected from districts formed by grouping six Deputies’ districts, and may amend or delay but not defeat a bill of supply. The Senate has an absolute veto on a constitutional Act, which is the only entrenchment anywhere in the Province’s constitution and which was inserted in 1855 as the price of abolishing the Council.

That single provision is why the twenty-nine constitutional Acts are twenty-nine and not two hundred. A constitution amendable by ordinary majority is nonetheless difficult to amend when one chamber can stop it and is elected on a different cycle, and the Province’s reformers have observed for a century that Massachusetts Bay’s constitution is protected not by any principle but by an accident of the bargain of 1855.

The Supreme Judicial Court

The Supreme Judicial Court of Massachusetts Bay is part of the constitution and not an institution operating under it, and the distinction is not rhetorical. The Constitutional Instruments Act 1893 declares the constitution to consist of the charter, the constitutional Acts and the whole read together, and the reading is what the Court does.

Older than what it construes

The Court’s continuity is the fact the Province most enjoys. It descends from the colonial Court of Assistants, operated through the vacating of the 1629 charter in 1684, sat under the Dominion of New England, was reconstituted rather than created by the charter of 1691, survived the recasting and the federation, and was reorganised but not interrupted by the Judicature Act 1867. It is older than the constitution it interprets and has never stopped sitting, which no other court in the Realm can say and which Massachusetts Bay mentions more often than is strictly necessary.

It has seven justices and a Chief Justice, appointed by the Lieutenant-Governor on the Premier’s advice after report by a judicial council, holding office during good behaviour to a retiring age, removable only on the address of both chambers. Massachusetts Bay has never elected judges and has never seriously considered it.

The doctrine of the working charter

The Court’s central problem is that its constitution’s plainest words mean the opposite of what they say. The fifth clause vests the executive in a Crown appointee acting according to his best discretion; the Province has responsible government; both propositions are law.

The doctrine the Court developed for this is called, in Massachusetts Bay and nowhere else, the working charter. Its elements are three and are stated in every case that turns on them.

A clause altered by a constitutional Act means what the Act makes it mean, and the original words are evidence of what the alteration was for. This is why the official edition prints the original: the struck words are not decoration but the material the Court reasons from.

A clause not altered but overtaken by practice is read to the practice, provided the practice is settled, is public and has been acquiesced in by the General Court. This is the limb that does the heavy lifting, and it is why the Premier exists as a matter of law despite existing in no instrument.

And a clause that can no longer be given any effect is not thereby repealed. This is the conscience clause limb, and it is the reason the parenthesis excepting Papists remains in the constitution while having been unenforceable for two hundred and forty years. The Court has declined four invitations to hold it spent, on the ground that a court which can delete a provision by declaring it dead has acquired an amending power, and that the General Court is along the corridor.

The two refusals

The Realm’s federal courts have twice declined to adopt the working charter doctrine, in 1949 and in 1988, on the ground that the Charter of Union does not present the same difficulty: it was drafted for the government it created, its words have never had to be read against a practice that contradicts them, and a doctrine developed to reconcile a royal grant of 1691 with responsible government has no work to do federally.

Several polities have borrowed it anyway. It is cited in Rhode Island constantly, in Plymouth occasionally and with reservations, and in Virginia, and the Realm’s constitutional writers treat it as the most substantial body of doctrine any polity has produced.

What it will not do

The Court has been consistent about its limits and the consistency is the reason the doctrine has survived. It will not fill a gap the charter left, holding that a constitution silent on a subject is silent and that the General Court may legislate. It will not resolve a conflict between two constitutional Acts by preferring the later, there being no hierarchy, and has instead developed rules of reconciliation that Massachusetts Bay lawyers find natural and everyone else finds baroque. And it has never once held an Act of the General Court unconstitutional for want of a special procedure, because there is no special procedure to want.

What the constitution does not contain

The most useful way to describe the constitution of Massachusetts Bay to somebody outside it is by what is missing, because the omissions are large and are the reason the Province is governed as it is.

There are no rights. The charter contains the conscience clause, which is a grant of liberty to Christians except Papists, and nothing else that a modern reader would recognise as a right. No constitutional Act has added any. Massachusetts Bay is the only polity of the Realm whose constitution confers no rights on persons at all except the Plymouth Constitution, which confers them on towns instead and is therefore in the same position by a different route.

The gap was filled federally. The American Rights Act bound federal authority alone until 1962 and has bound every public authority in the Province since, and Massachusetts Bay’s answer to the question why it has never written its own is that the Act does the work and that a Province duplicating it would be claiming a credit it had not earned. The answer is the same one Ohio gave twice and is more comfortable in Ohio’s mouth, Ohio having had a clause of its own since 1803.

There is no amending procedure. There is no article on amendment anywhere in the constitution, because a charter granted by the Crown did not contemplate being amended by the Province, and the recasting proceeded by agreement with the Crown rather than under any provision. What Massachusetts Bay has instead is the practice that a constitutional Act amends the charter, which is not authorised by anything and has never been challenged.

There is nothing on the towns before 1934, which is treated below, and nothing on the counties at all.

And there is no statement of what the constitution is. The Act of 1893 lists its elements because Parliament required a single instrument; before 1893 no document anywhere said what the constitution of Massachusetts Bay consisted of, and the Province had gone two hundred and two years without needing one.

The separations

The charter united three colonies and two of them have since left, by methods so different that the Province remembers one as a settlement and the other as a secession.

Maine, 1820

Maine separated in 1820 by consent, and the consent is the whole difference.

The District of Maine had been part of the Province since 1691 and had never been comfortable in it. It was distant, its economy was timber and fishing rather than trade and manufacture, its representation in the General Court was thin relative to its area, and the practical business of governing it from Boston across the intervening country had been a complaint since the charter was granted.

The separation was accomplished in the orthodox way and took four years. Maine’s own conventions voted for it. The General Court of Massachusetts consented by Act. The two negotiated terms, chiefly about the public lands, the division of the Province’s debt, and the continuation of Maine’s existing courts and land titles. Parliament then erected the Province of Maine by statute, and the Crown assented.

Nobody has ever disputed the result and nothing was left over. The charter’s first clause still recites Maine as part of the Province and has never been amended to remove it, which the official edition handles with a marginal note, and which is the only trace the separation has left in the constitution.

Plymouth, 1874

Plymouth left without consent, and the difference is why the two provinces are close and prickly at once.

The Old Colony had been absorbed by the charter in 1691, having had its own patent, government, churches and sense of purpose since 1620, and its towns had never accepted the absorption as anything but a convenience of the Crown’s. The case for reconstitution was made and won through the town meetings, voting one by one, in the form Plymouth had used before there was a province able to absorb it, and it carried.

The General Court did not consent. Massachusetts opposed the separation, argued that a referendum of towns had no constitutional standing to divide a province created by royal charter, and lost the argument in Parliament, which erected the Province of Plymouth in 1874 on the view that a population which had governed itself before the union and had voted to resume doing so was entitled to be heard.

The constitutional residue is real. The Province’s name records the subtraction: until 1874 the enlarged province created by the charter was Massachusetts, and the Province of Massachusetts Bay is what was left, reverting to the name of the colony that existed before 1691 gathered the others in. And the charter’s first clause still recites New Plimouth, with a marginal note, exactly as it recites Maine.

Two theories of one document

The charter of 1691 is the founding instrument of Massachusetts Bay and the instrument that extinguished Plymouth, and the two provinces have held irreconcilable views of what it was for three hundred and thirty-seven years. The dispute is not about history. Both provinces agree about what happened. It is about what a charter is, and each province’s whole constitutional identity rests on the answer.

The Bay’s theory

Massachusetts Bay holds that a charter is a compact. The Crown grants and the grantee accepts, and what results binds both: the Crown may not withdraw it, alter it or disregard it, and if the Crown breaks it the remedy is to make the Crown keep it. This is the position the Province took in 1775, when its complaint was not that the charter was bad but that the Crown had not kept it, and it is the position on which the towns rejected their own convention’s draft in 1778.

It is also the reason the charter cannot now be discarded. A Province that replaced the charter would be conceding that it had been a revocable royal grant all along, which is the proposition the Province’s entire constitutional history denies and which it staked everything on denying at the one moment it mattered.

Plymouth’s theory

Plymouth holds that a charter is a grant, and that a grant is precisely a thing the granting authority may revoke, alter or forfeit. Its evidence is the Bay’s own: the colony charter of 1629 was vacated by judgment in Chancery in 1684, and the Province charter of 1691 was imposed on a colony that had asked for the old one back and did not get it. Plymouth’s conclusion is that the Old Colony’s failure ever to obtain a charter, far from being the weakness that lost it its independence in 1691, is the reason its civic identity survived the loss. What cannot be granted cannot be revoked.

On this view Plymouth’s want of a charter is its constitutional advantage and the Bay’s possession of one is the Bay’s constitutional wound.

Why neither can win

The theories cannot both be right and neither province can afford to be wrong.

If the Bay is right, Plymouth’s separation in 1874 was the division of a province created by a compact, without the consent of the party to it, which is what Massachusetts argued in Parliament and lost. If Plymouth is right, the Bay has spent three centuries revering an instrument that was always the Crown’s to take away, and the position the Province held in 1775 was a bluff that was never called.

Parliament decided the 1874 case and decided nothing about the theories, erecting the Province of Plymouth on the narrow ground that a population which had governed itself before the union and had voted to resume doing so was entitled to be heard. Both provinces read the judgment as a vindication. Neither has ever pressed the underlying question, and the reason is the same on both sides: a definitive answer would cost one of them a great deal and neither can be sure which.

The two constitutions accordingly sit next to each other in the Realm’s list, forty-two kilometres apart, holding opposite views of the same document, and cooperating on ferries.

The constitutional Acts

Twenty-nine Acts of the General Court have altered the charter or added to the constitution, and they are distinguished from ordinary legislation by nothing except their subject.

There is no special procedure. An Act amending the Province Charter passes by simple majority in both chambers and receives assent, exactly as an Act about fisheries does, and the Realm’s constitutional writers regard Massachusetts Bay as the clearest case in the Realm of a constitution that is old, revered, and legally no harder to change than anything else.

The principal Acts are these.

The Charter Amendment Acts 1780 to 1783 are the recasting and are treated above. The Charter Amendment Act 1802 reduced the property franchise and adopted the numbering and the official edition. The Charter Amendment Act 1848 repealed disallowance. The Senate Act 1855 replaced the Council with a directly elected Senate. The Representation Act 1857 widened the franchise to male ratepayers and renamed the House of Representatives the House of Deputies, which is the name it now carries. The Judicature Act 1867 reconstituted the courts around the Supreme Judicial Court. The Constitutional Instruments Act 1893 produced the consolidation deposited with Parliament. The Franchise Act 1919 admitted women. The Local Government Act 1934 is the first instrument in the Province’s history to mention the towns.

Fifteen further Acts are administrative or consequential.

The towns

That the towns of Massachusetts Bay were not mentioned in any constitutional instrument until 1934 is the most remarkable fact in the Province’s constitutional history, and it is not an oversight.

The town meeting is older than the charter, older than the Province, and older than the colony’s own 1629 instrument in the sense that mattered, and it governed Massachusetts continuously through the vacating of one charter, the Dominion, the granting of another, a revolution, a recasting and a federation, without ever being constituted by any of them. The charter of 1691 mentions towns only as the bodies that elect deputies. It confers nothing on them, and every power a Massachusetts town exercises rests on statute, on custom, or on the proposition that the towns were there first.

The Act of 1934 was passed reluctantly and does very little, providing for the incorporation of towns, the conduct of town meetings and the relationship between towns and the Province, and expressly saving every power a town held before it. It was opposed by the towns, on the ground that a power described is a power bounded, which is the same objection Rhode Island’s towns made to four constitutional drafts and which is a New England argument older than either province.

The towns since 1934

The Local Government Act 1934 did very little and has been amended twice, in 1969 and in 2004, both times to enlarge what it saves rather than what it confers.

Massachusetts Bay’s towns are accordingly in a position that has no parallel in the Realm except Rhode Island’s. They exercise substantial powers, hold open town meetings in a great many places, and rest all of it on statute, custom and the proposition that they were there before the Province was. They have no constitutional guarantee of any kind. The General Court could abolish the town meeting tomorrow by ordinary Act, subject only to the Senate, and the reason it will not is political rather than legal.

The towns prefer this. Their argument, made in 1934 and repeated since, is that a power described is a power bounded, and that a town whose rights are written down has exchanged an unlimited claim for a limited grant. It is the same argument Rhode Island’s towns made to four constitutional drafts across nineteen years, and it is the exact opposite of the position Plymouth’s towns took in 1874, where the towns’ rights were written into the Covenant and made enforceable against the Province by an action in which the town cannot be put to costs.

The two New England answers to the same question are therefore both live, forty-two kilometres apart, and each set of towns thinks the other has made a serious mistake. Massachusetts Bay’s towns point out that Plymouth’s towns are now limited to what the eighth to the thirteenth articles say. Plymouth’s towns point out that Massachusetts Bay’s have nothing at all and are relying on the forbearance of a chamber they do not control.

Boston, and the seat

The charter does not name a capital. It provides that the General Court shall assemble where the Governor appoints, which was the ordinary form for a royal province and which the Crown used in 1774 to move the seat of government from Boston to Salem as a punishment.

That episode is why the seat is now fixed by statute and not by the charter. The Charter Amendment Act 1783 provided that the General Court should sit at Boston and should not be removed except by its own Act, which is a small provision and is the only one in the constitution that exists purely because of something done to the Province in living memory of its drafters.

Boston is accordingly the seat of the General Court, of the Ministry, of the Supreme Judicial Court and of the Lieutenant-Governor, all four in the same square kilometre, which is an arrangement California went to constitutional trouble to prevent in 2019 and which Massachusetts Bay has never once regarded as a problem. The Province’s view is that a government whose parts can walk to each other is a government that talks to itself, and that the alternative produces the correspondence and the delay rather than the independence.

Deposit

Massachusetts Bay deposited under the Polity Instruments Act 1889 in 1893, and had to build something to deposit.

The Act required a single written instrument, and the Province’s constitution was a charter, four amending Acts of the recasting, six later Acts, and a great deal of construction. Its law officers advised that the charter alone would not satisfy section 1, since it did not describe the government the Province actually had, and that a bare collection of documents would not satisfy the word single.

The Constitutional Instruments Act 1893 is what resulted. It is a consolidation: it recites the Colony Charter of 1629 and the Province Charter of 1691, declares that the constitution of the Province consists of the charter as amended together with the constitutional Acts, sets out the charter with its alterations in the form of the official edition, schedules the Acts, and provides that the whole is to be read together. It is the instrument on the shelf at New Westminster, and it is the only polity instrument in the Realm whose text opens with a recital of a document from 1629.

The deposit is also the reason the Province’s practice of marking alterations became a legal requirement rather than an editorial habit. The 1893 Act requires the official edition to show the charter’s original words and every alteration, which means that a Massachusetts Bay government wishing to conceal a constitutional change would have to amend the Act requiring it to be shown, which nobody has attempted.

The charter and the Realm

A charter granted by William and Mary in 1691 sits under a Charter of Union sealed in 1783 and under the law of a Realm that did not exist when it was written, and the arrangements for that are almost entirely unwritten.

Subordination

The constitution of Massachusetts Bay contains no supremacy clause. There is no provision that federal law prevails, no article of subordination, and nothing corresponding to what California wrote into its Article I in 2019 to keep the Law Officers out. The charter could not have contained one, having predated the Realm by ninety-two years, and no constitutional Act has added one.

The Province’s position, which is the same position Plymouth takes by a different route, is that the Charter of Union binds Massachusetts Bay because Massachusetts Bay is in the Union, and that an instrument saying so would add nothing. The difference is that Plymouth’s silence is a deliberate refusal and the Bay’s is an accident of chronology that the Province has since decided it likes.

1962

The extension of the American Rights Act to the polities in 1962 was the largest change to what the constitution of Massachusetts Bay means since the recasting, and it was accomplished without touching the constitution at all.

Before 1962 the Act bound federal authority alone. After it, every public authority in the Province was bound, which supplied Massachusetts Bay with a body of rights its own constitution had never contained and made the conscience clause unlawful for the second and third times. The Province did not amend anything, there being nothing to amend: a constitution silent about rights cannot be inconsistent with a rights instrument, and the two have run alongside each other for sixty-six years without meeting.

The Province did pass a consequential Act, in 1964, repealing eleven statutes that could not stand with the extended duties. It is not a constitutional Act and is not in the schedule to the 1893 consolidation, which the Province’s law officers considered and decided against on the ground that a statute repealing statutes alters no part of the constitution.

The section 6 power

Section 6 of the Polity Instruments Act 1889 permits a Law Officer of the Crown to certify a provision of a deposited instrument inconsistent with federal law, which strikes it out. It has never been used against Massachusetts Bay, and the obvious candidate has been sitting in the text since 1691.

The conscience clause is unlawful under the Rights Act at two sections and has been since 1962, is unenforceable, and is exactly the sort of provision section 6 was drafted for. It has not been certified, and the Law Officers’ standing reason, given informally in 1971 and never departed from, is that the power exists to remove provisions that would otherwise operate, that this one cannot operate, and that striking it out would achieve nothing except to tidy away a record the Province has deliberately chosen to keep.

The Province is grateful and has said so, which is the only recorded instance of a polity thanking the Law Officers for declining to fix its constitution.

The replacement question

Whether to replace the charter with a modern constitution is the Province’s live constitutional controversy, and it is live in the sense that it is raised every twenty years or so and defeated every time.

The case for replacement is straightforward and has not changed since 1778. The Province is governed under a royal grant of 1691 which on its face vests the whole executive in a Crown appointee acting at his own discretion, whose plain meaning has nothing to do with how Massachusetts Bay is governed, and which requires a reader to hold four amending Acts and a body of convention in mind before a single sentence of it means what it appears to mean. A constitution that cannot be read is a constitution that only lawyers can use, which in a Province with as many lawyers as this one is not a neutral observation.

The case against has three parts and the third is the one that wins.

The technical objection is that replacement would require settling questions the Province has managed for three centuries by not settling them: the standing of the towns, the relationship between the charter and the constitutional Acts, and what exactly the Supreme Judicial Court’s construction amounts to. Every draft has foundered on the towns, as every Rhode Island draft did.

The practical objection is that the present arrangement works, that no case has arisen in three hundred and thirty-seven years that it could not resolve, and that a Province considering replacement is a Province proposing to solve a problem it does not have.

And the historical objection is the one that has actually defeated every proposal, and it is the argument of 1778 restated. Massachusetts Bay’s constitutional position throughout the crisis of 1775 was that the charter was a compact, that the Crown had broken it, and that the remedy was to make the Crown keep it. A Province that now discarded the charter would be conceding, two hundred and fifty years late, that it had been a royal grant the Crown could have withdrawn, which is the proposition its whole constitutional history denies.

The most recent proposal, a convention Bill, was defeated in the House of Deputies in 2019 on a free vote by rather more than two to one.

And the Plymouth difficulty

There is a fourth objection which is not made in public and which everybody in Massachusetts Bay understands.

Plymouth holds that a charter is a grant and that a grant is revocable, and rests its own constitutional identity on the proposition that the Old Colony’s failure ever to obtain one was its salvation. Massachusetts Bay holds that a charter is a compact. A Province that discarded its charter would be conceding Plymouth’s premise, in the argument the two provinces have been having since 1874 and in the argument Massachusetts lost in Parliament that year.

This is not a good reason to keep a constitution and is not offered as one. It is nonetheless a real weight in the scale, it is felt most strongly by exactly the members most likely to be asked to vote on a convention Bill, and the Province’s constitutional writers acknowledge it in print while carefully not relying on it.

The Register’s observation is that Massachusetts Bay has now spent two hundred and fifty years unable to replace its constitution for reasons that have almost nothing to do with the constitution, and that the Province regards this as a description of principle rather than of paralysis.

The constitution in ordinary life

A constitution written in 1691 in a hand nobody now writes, meaning the opposite of what it says, is not obviously a document a population encounters. Massachusetts Bay’s encounters it more than most populations encounter theirs, and the reason is the official edition.

The edition

The Province publishes the constitution as a single volume, revised on the passage of every constitutional Act, in which the charter appears in its 1691 words with every alteration marked: struck where repealed, bracketed where amended, with the amending Act named in the margin. It is a legal text, is required by the Act of 1893 to be produced in that form, and costs very little.

It is also, unexpectedly, a school book. Massachusetts Bay teaches its constitution from the official edition rather than from a summary, on the reasoning that a summary would have to choose between the charter’s words and their present meaning and would therefore teach one of the two things the Province thinks a citizen needs to know. The consequence is that a large proportion of Massachusetts Bay adults have at some point read a seventeenth-century royal grant with two centuries of corrections written over it, and can tell you that the conscience clause excepts Papists and that the first clause still recites Maine.

Whether this produces constitutional literacy or only familiarity is argued about in the Province’s education faculties. The Register’s observation is narrower: Massachusetts Bay is the only polity of the Realm where the ordinary citizen has seen the constitution’s original words, because everywhere else the original words either are the present words or have been quietly incorporated.

What a citizen actually meets

Very little of the constitution touches an ordinary life directly, which follows from its containing no rights.

What it produces instead is a manner. A Massachusetts Bay dispute with a public authority is framed as a question of power: not whether the authority acted reasonably but whether it was entitled to act at all, and the answer runs back through statute to the charter. The Province’s administrative practice, its licensing, its planning and its school committees all operate in that register, and officials who move to Massachusetts Bay from other polities report that the first thing they must learn is that a decision here is expected to identify its source of authority rather than its justification.

That is the opposite of California, where a decision must justify itself at length and its source of authority is rarely in doubt, and the difference is precisely the difference between a constitution that grants powers and a constitution that constrains their exercise.

The anniversary

The Province marks 7 October, the date of the charter’s engrossment, with nothing whatever. There is no public holiday, no observance and no ceremony, and proposals for one have been declined four times since 1891 on the ground that it is not obvious what would be celebrated.

The Province does mark the rejection of the convention draft in 1778, quietly, at the towns’ level, in about a dozen places, which the Register mentions because it is characteristic. Massachusetts Bay does not commemorate the day it was given its constitution. It commemorates the day it decided to keep it.

The Province’s legalism

Massachusetts Bay thinks in law, and its constitution is the reason.

A polity whose founding instrument describes a government it does not have must reconcile the two continuously, and the reconciling is done by argument. The Province’s civic culture, in which disputes are framed legally, rights are claimed legally and institutions are held to account legally, is not primarily a product of its law schools. It is a product of three hundred and thirty-seven years of needing to explain why a charter vesting all executive power in a royal appointee produces a Premier answerable to an elected chamber.

The Supreme Judicial Court is the institution that does the explaining and is itself part of the constitution. It is older than the charter it construes, having operated continuously from the colonial era through the vacating of 1684, the Dominion, the grant of 1691, the recasting and the federation, and it is one of the longest-running courts in the Realm. Its construction of the charter is not commentary: the Province’s own consolidating Act of 1893 declares the constitution to consist of the charter, the constitutional Acts, and the whole read together, and the Court’s decisions are how the reading is done.

The consequence is a jurisprudence with no counterpart elsewhere in the Realm. The Court routinely construes a seventeenth-century royal grant against a twentieth-century statute and a body of convention, and it has developed doctrines for doing so that other polities have borrowed and that the Realm’s federal courts have twice declined to adopt, on the ground that the Charter of Union does not present the same problem.

The literature

Massachusetts Bay has produced more writing about its own constitution than the rest of the Realm’s polities combined, and the reason is structural rather than cultural: an instrument whose meaning must be reconstructed from a charter, four amending Acts, twenty-five later Acts and a body of judicial construction generates a permanent demand for people who can do the reconstructing.

The consequence is a discipline that exists nowhere else in the Realm. Massachusetts Bay’s law schools teach the Province’s constitution as a subject in its own right, with a literature, a canon of cases and a set of long-running scholarly quarrels, where every other polity teaches its constitution as a fortnight of a course on the Realm’s.

Three of the quarrels are worth naming because they are unresolved and because they are what the Province argues about instead of amending anything.

Whether the constitutional Acts rank above ordinary Acts. The orthodox answer is that they do not, there being no procedure distinguishing them and no provision stating a hierarchy, and that the constitution is therefore protected by nothing but the Senate’s veto of 1855 and the political impossibility of using an ordinary majority to touch the charter. The heterodox answer, associated with a line of writers running from the 1870s, is that the Supreme Judicial Court would in extremity hold that an Act purporting to abolish, say, the General Court could not be a valid exercise of a power derived from the charter. The Court has never been asked and there is no sign of anyone asking it.

Whether the recasting was an amendment or a refoundation. The Province’s official position is that the charter of 1691 has been continuously in force since it was granted. A persistent minority holds that what happened between 1775 and 1783 amounted to a new constitution wearing the old one’s clothes, that the Province adopted responsible government, the taxing power and a Governor appointed on advice, and that a document altered that comprehensively is a different document. The argument matters because the official position is the one that answers Plymouth.

And what the towns are. This is the oldest and least tractable. The towns predate the charter, are mentioned in it only as bodies that elect deputies, held every power they hold by custom until 1934 and hold most of them by custom still. Whether they are creatures of the Province, parties to it, or something the Province found already in existence and has never dared define is a question four constitutional drafts have foundered on in Rhode Island and one Local Government Act declined to answer here.

The literature is the Province’s substitute for constitutional change and everybody involved knows it. A polity that cannot amend its constitution without conceding an argument, and does not need to amend it because the courts can reconcile anything, will produce scholarship instead of legislation, and Massachusetts Bay has produced a great deal.

Comparison

The Realm’s polity constitutions fall into four classes and Massachusetts Bay is the founder of the first.

The charter instruments are grants, in which authority descends. Massachusetts Bay is the type specimen and Rhode Island the other member, and the class is defined by a difficulty the other three do not have: the document was written by somebody else, for a different government, and must be reconciled with the government the polity actually has. Everything peculiar about Massachusetts Bay follows from that, including the official edition, the working charter doctrine, the legalism, and the fact that the Province cannot replace its constitution without losing an argument it won in 1775.

The negotiated instruments are bargains, in which authority is exchanged. Louisiane and the March Charter of 1884 are treaties in constitutional form, and their difficulty is the opposite one: they say precisely what was agreed, at length, and their problem is what happens when a party’s circumstances change.

The designed instruments are answers to questions. Ohio in 1803 had no charter to adapt and no counterparty, and California in 2019 had a scandal and a citizens’ assembly. Their difficulty is that a constitution designed against a known problem is not thereby designed against an unknown one.

The covenanted instrument is Plymouth alone, in which authority is pooled by parties who had it already.

What the comparison shows

Two pairings are worth drawing and both involve Massachusetts Bay.

Against Ohio, the contrast is about remedies. Ohio’s instrument of 1803 is the corpus’s demonstration that a right is worth the remedy attached to it and nothing more: its eleventh section forbade legal disability and nothing else, its home rule article guaranteed municipal authority with no way to defend it, its education article imposed a duty its own court could declare four times and never enforce. Massachusetts Bay confers no rights at all and therefore never had the problem, which is not a virtue but is worth stating precisely: the Bay’s constitution is not a bad rights instrument, it is not a rights instrument, and the Province has been content to let the Realm supply that since 1962.

Against California, the contrast is about legibility. California’s constitution of 2019 was built on the proposition that authority must show its work, in an instrument that specifies its procedures at length precisely so a legislature cannot amend them away. Massachusetts Bay’s is unreadable without a lawyer, means the opposite of what it says, and is amendable by ordinary majority subject only to a Senate veto acquired by accident in 1855. Both provinces are governed well. The Realm’s constitutional writers find this the most annoying fact in the subject and it is regularly cited by people who wish to argue that constitutional design matters less than anybody thinks.

Assessment

The Constitution of Massachusetts Bay is the oldest in the Realm, the least tidy, and the one its polity is least willing to change, and the three facts are the same fact.

It was a defeat when it was granted. The colony asked for its own charter back and was given a royal province with an appointed governor, a property franchise and a liberty of conscience it had not requested, enlarged with two territories that had not asked to be included. Massachusetts has kept the document for three hundred and thirty-seven years and has never entirely stopped resenting its origin, and the resentment is visible in the official edition, which recites the vacated charter of 1629 in its opening clause and has never been amended to stop doing so.

And it became the Province’s principal asset, because the argument the Province made in 1775 required it. A people whose complaint is that the Crown has broken a compact needs the compact to exist. Massachusetts Bay chose to amend rather than replace, rejected its own convention’s draft in 1778 on the ground that it already had a constitution, and secured responsible government in 1780 by writing it into somebody else’s charter three years before the Charter of Union was sealed. The Realm learned the arrangement here and did not write it down.

Its treatment of its own embarrassments is the thing the Register most respects about it and is not a virtue that costs anything. The conscience clause excepting Papists is printed unrepealed in a Province now substantially Catholic; the first clause still recites a province three times the size of the one it governs; the property franchise is printed struck through with three instruments named in the margin. All of it is visible because the consolidating Act of 1893 requires it to be, and the Province’s argument for the practice is that a constitution which deletes what has happened to it is a worse record and a worse teacher.

What can fairly be said against it is what its reformers have said since 1778. It is unreadable without a lawyer, its plainest words mean the opposite of what they say, it is legally no harder to amend than a fisheries Act despite being treated as sacred, and a Province with this many lawyers has less incentive than most to notice that this is a problem. The Province’s answer is that it has governed itself under this instrument through a revolution, a federation, two separations and a civil war without a constitutional crisis it could not resolve, and the answer is a good one and is not a refutation.

What the Register takes from the case is narrower than either side would like. Massachusetts Bay is the evidence that a constitution’s quality and a constitution’s design are different questions. This instrument is badly drafted for its purpose, because it was drafted for another purpose entirely by people who intended the opposite result; it is unreadable, unentrenched, silent on rights, silent on amendment and silent on the towns; and the Province it governs has been among the best-governed places in the Realm for three centuries. Nothing in the document explains that, and the Province’s own explanation, which is that the document forces everybody to argue carefully, is the sort of claim that is impossible to test and difficult to dismiss.

The other thing worth saying is that the constitution has never been tested by a bad government. Massachusetts Bay has had incompetent ministries, corrupt ones and several that were both, and has never had one that wanted to do something the constitution stood in the way of and was prepared to use an ordinary majority to remove the obstacle. A constitution amendable by simple majority in two chambers has exactly as much strength as the restraint of the people who could amend it, and the Province has been fortunate rather than protected for three hundred and thirty-seven years. Its reformers have made this point since 1778 and it has never yet been the winning argument.

Chronology

Trivia

See also

• Province of Massachusetts Bay: the polity this instrument governs
• Province of Plymouth: absorbed in 1691, reconstituted by town meeting in 1874
• Polity Instruments Act 1889: which required the consolidation of 1893
• Charter of Union of the American Colonies: sealed ninety-two years after this charter was granted
• Constitution of the March of Arizona: the Realm’s other polity instrument treated at length, and this one’s opposite in almost every respect
• Constitution of Louisiane
• American Rights Act: which made the property qualification and the conscience clause unlawful in 1962
• Institutions and Government

Categories

Institutions · Law · Constitutions · Polities · Massachusetts Bay · Charters · Colonial Inheritance