Massachusetts State Government: Second Edition [2nd ed. Reprint 2014] 9780674864092, 9780674864061

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Massachusetts STATE GOVERNMENT

Massachusetts STATE

GOVERNMENT Second Edition The League of Women Voters of Massachusetts

H A R V A R D UNIVERSITY PRESS Cambridge, Massachusetts 19 7 0

©

Copyright 1956

a n d 1970 by the President a n d Fellows of Harvard College

All rights reserved Distributed in Great Britain b y O x f o r d University Press, London

Library of Congress Catalog Card Number 7 2 - 1 2 7 8 7 9 Printed in the United States of America

To the people of Massachusetts and in memory of Lotte E. Scharfman, whose goal as president of the League of Women Voters of Massachusetts was to bring government closer to the people

Preface Strikes, sit-ins, and confrontations between groups of citizens and government agencies are a common occurrence today. People use dramatic techniques to focus public attention on their problems and grievances and get service. Such methods sometimes produce action for a particular group or problem, but solutions to long-range social problems require governmental structures which are responsive to the needs of all people. The root causes for the alienation of the young, the black, and the poor must be attacked if the democratic process is to survive. Social and governmental institutions must be changed to make effective participation possible for more people. As the pace of life has accelerated, people have called upon their government to assume powers that could not have been anticipated or even imagined in the eighteenth century. The population of Massachusetts today is some seventeen times that of the Commonwealth of 1780. Because this larger number of people, operating under an increasingly democratic structure, has demanded greater governmental responsibilities, government has inevitably become less direct, delegating its powers to an ever-growing number of officials. Thus it has become more difficult for citizens to keep in direct touch with their government or to know where to turn for action or explanation. Although government derives its power from the broadest possible base, the very magnitude of the power and the breadth of the base tend to make many of the individuals who compose it feel unable to participate meaningfully. This book is dedicated to the citizens of Massachusetts to further their participation in state government. It attempts to set forth the purpose, powers, and limitations of Massachusetts government and describe the organization and functions of that government. Emphasis has been placed on matters of general interest in each section of the government — what the section is trying to do, how it operates, and what its general problems are. While the structure of each department is indicated briefly, much detail is

vili

PREFACE

necessarily omitted. There is no department in Massachusetts government whose work could be fully described in less than a volume. The material in this book was prepared by members of the League of Women Voters of Massachusetts. In 1950 the Massachusetts League voted to undertake a study of certain aspects of the state government as an aid in formulating its program of action in support of certain governmental policies and legislation. The League study required considerable research into individual agency reports, some few written for the public, but the majority designed to transmit required information to the governor or the legislature. In addition, a great deal of valuable information was obtained from interviews with officials in all sections of the government, as well as from conferences with other people interested in various aspects of state government. The League of Women Voters of Massachusetts revised and expanded the results of the original study to cover all the main sections of Massachusetts government and made the material generally available. The first edition was published in 1956 and the first comprehensive revision was published in 1970. Because the government is in a perpetual state of flux, the material has required continued revision. Although every effort has been made to provide material that is accurate as of June 30, 1969, it is probable that new legislation will alter some stated facts even before publication. The League of Women Voters wishes to thank the many officials in the government and other authorities who supplied materials, made suggestions, and corrected errors, for the time, attention, and interest they gave freely. Although we acknowledge their assistance with the deepest gratitude, we take upon ourselves the responsibility for whatever errors, either of fact or appraisal, may still remain. The views of the several individual authors are presented as a basis for study and questioning on the part of Massachusetts citizens, but do not necessarily reflect official League positions.

A M O N G

THOSE

SUSTAINED SIBLE

MEMBERS

EFFORT

AND

OF

THE

LEAGUE

DEVOTION

OF

HAVE

WOMEN MADE

ARE:

Elinor A d a m s

Elinor Inman J e n n i n g s

Alice S. A m d u r

Marilyn

Margaret

M a r g a r e t Lynch

Bainbridge

Kopp

Evelyn Bender

Ursula A . M a s o n

Ruth F. Bean

Norma

McGavern

N a n c y Beecher

Marcia

Molay

Katherine S. Bolt

Theresa M o r s e

Dorothy Kirschway Brown

Muriel M o z z i

M a r g a r e t E. Bruce

M a r y B. N e w m a n

A m y G . Coit

Helen Patterson

Patricia C r a n d a l l

Betsy W . Pitha

Marjoríe T. Curtis

Helen Protheroe

Margaret

Ruth Race

Downes

Katharine E. Driscoll

Ruth Romer

N a n c y F. Earsy

Katherine Β. Ross

D e b o r a h Ecker

Jean Β. S a m p s o n

N a n c y Eddy

I d a C. S n y d e r

Juliette K. F a g e r

Janet Starr

Ruth Fletcher

Ruth Strauss

Joan

Helene Stoneman

Flood

A n n e O . Freed

Lex Taylor

N e v a Holden G i n d e r

M i l d r e d C. V e r h a g e

M a r y L. G o s s a r d

Pauline W a s b y

Helen A . Henkels

Laura W h i t e

M a r y K. Hitchcock

VOTERS

THIS

WHOSE

BOOK

POS-

Contents PART I

PARTICIPATION IN MASSACHUSETTS 1

Voting and Elections 3

2

Political Parties 10

P A R T II

THE M A K I N G

OF M A S S A C H U S E T T S

3

History and Background 21

4

The Constitution 46

PART III

THE L E G I S L A T I V E 5

PART IV

GOVERNMENT

GOVERNMENT

BRANCH

The Massachusetts Legislature 59

THE E X E C U T I V E B R A N C H : A D M I N I S T R A T I V E O R G A N I Z A T I O N A N D STATE SERVICES 6

The Governor 75

7

Constitutional Administrative Officers 83

8

State Administration 91

CONTENTS 9

PART

Public Personnel 112

10

Fiscal Policies a n d Practices 128

11

Education 150

12

Health 183

13

Welfare 197

14

M a n p o w e r a n d Jobs 2 0 7

15

Crime Prevention a n d Correction 2 1 6

16

Public Safety 2 3 1

17

Consumer Protection a n d Regulation 2 4 1

18

Construction a n d Transportation 2 6 2

19

Planning a n d Development 2 7 3

20

Environmental Affairs 2 8 1

V

THE J U D I C I A L 21

PART VI

BRANCH

The Judiciary 293

INTERGOVERNMENTAL

RELATIONS

22

County Government 3 2 3

23

State-Local Relations 3 3 5

24

State-Federal a n d Interstate Relations 3 4 4

25

Conclusion: Citizens a n d State Government 3 5 5 Index 3 5 9

Tables Table 1.

Voter Registration a n d Voting Patterns in Massachusetts 12

Table 2.

Population Origins, 1790

Table 3.

Immigration Expansion, 1821—1861

Table 4.

Race a n d National Origin, the United States a n d Massachusetts, 1960 3 8

Table 5.

Employees in Certain Industry Groups, Massachusetts a n d the United States 4 4

Table 6.

Massachusetts Nonagricultural Employment, 1 9 3 9 - 1 9 6 5

Table 7.

Administrative Agencies in Massachusetts 9 4

Table 8.

Appointment of Judges 3 0 9

Table 9.

Judicial Personnel 3 1 2

34

Table 10. Costs of the Court System, 1967

34

317

Table 11. County Characteristics 3 2 5

Charts Chart 1. State a n d Local Revenue Sources 135 Chart 2. State Revenue a n d Expenditures 144 Chart 3. Mental Health Department — Organizational Structure 195 Chart 4. The Massachusetts Court System 2 9 6 Chart 5. County Government Administrative Structure 3 3 0

45

PARTICIPATION IN MASSACHUSETTS GOVERNMENT

1 Voting and Elections The right to vote is fundamental to any kind of self-government. The vote is a symbol of equality and citizen participation. It is also a weapon for self-protection and a tool to get things done. The responsibility of public officials for meeting public needs is finally determined by the vote of the citizens themselves. At the same time, the vocabulary of the voting booth permits only a yes or no response to the performance of officials. This limitation indicates that while voting is the ultimate sanction, citizens who wish to influence particular aspects of public policy must use other mechanisms in addition to the ballot box. Still, election procedures can determine to a large degree the extent of basic participation in government. The accessibility and visibility of the election process greatly influence citizen attitudes toward government. HISTORY OF ELECTION PROCEDURES In Massachusetts, from the first codification of laws to the present time, election laws have been given the most detailed attention. Election methods in the early days were quite different from those of today. A law passed in 1643 directed that, in voting for assistants (or directors), the freemen were to use Indian corn for a favorable vote and a bean for a blank. Colony-wide officers such as the governor were "to be chosen by writing, open or once folded, not twisted or rolled up, so that they may be the sooner and surer perused." The constitution of 1780 contains not only the first regulations concerning the franchise, but three precepts that govern elections. In order to prevent officials from becoming oppressors, the people have the right "to cause their public officers to return to private life." The constitution stated .that all elections should be free, and all inhabitants having the necessary qualifications should have an equal right to elect and be elected. It also stated that the people have the right to require their officials to adhere to the fundamental principles of the constitution, and to the principles of "piety, justice, moder-

4

PARTICIPATION IN MASSACHUSETTS GOVERNMENT

ation, temperance, industry, and frugality." The constitution provided that ownership of property be a qualification for voting and holding office. Some of these restrictions were removed at the first constitutional convention in 1820. The franchise was extended to all men over twenty-one years old who were not paupers or incompetent and had paid their taxes during the past two years. Property qualifications for councillors, senators, and representatives were also annulled. Property qualifications for all other elected officials were dropped later. Most of our present election laws in Massachusetts date from the last two decades of the nineteenth century, a period of active election-law reform. In 1888 Massachusetts adopted the secret ballot for all elections. In 1891 payment of taxes was eliminated as a qualification for voting. During this period registration laws were also revised. In 1894 members of party committees were required to be chosen at primary elections, rather than by party leaders. Provision for compulsory statewide primaries was not made until 1911. During these years Massachusetts acquired the reputation for pioneering in good election practices. With the extension to women of the right to vote and hold office by 1924, our election laws became substantially what they are today. VOTING REQUIREMENTS

A voter must be at least twenty-one years of age, a citizen of the United States, a resident of Massachusetts for one year and of his city or town for the six months preceding the election in which he seeks to vote. He must be able to read the constitution in English and sign his name, and he must be registered in the city or town where he wishes to vote. There is one exception to the literacy requirement. If a person has completed sixth grade in any school in the United States or any of its territories where English was not the primary classroom language, he need not read the constitution. In practice, this law extends the franchise to Spanish-speaking Puerto Ricans. Citizens who are unable to meet residency requirements, but fulfill other basic voting qualifications, can apply for a special ballot in order to vote for president and vice-president, if they have lived in Massachusetts for thirty-one days preceding a national election. To register, the citizen must appear before the local board of registrars or election commissioners and prove that he has the necessary qualifications for voting. A person prevented by illness from appearing in person may apply to his local registrar, who will send officers to his home. Except by special legislation for members of the armed forces, there is no provision for registration by mail. Massachusetts law makes registration permanent. The lists of voters in each community are checked annually against a special census or the police

VOTING AND ELECTIONS

5

listing taken each year. A card is sent to the last known residence of any person who does not appear on the census or police list. If there has been an error, the voter may reinstate himself by returning the card. If no card is received, the voter's name is deleted from the voting list. The voting lists are posted annually in each precinct, so that voters may check to be sure they are still properly listed, and they may re-register if they have been omitted. The town or city department of vital statistics is required to notify the election commissioners of all deaths so that the lists may be kept accurate in this respect. Re-registration is necessary if the voter moves to another city or town, changes his name either by court action or by marriage, or is dropped from the list. If a voter moves to another Massachusetts town or city within six months of a state or national election he does not lose his vote. He may still vote from his former residence in state or national elections. This regulation does not apply to voting in city or town elections. A registered voter may cast an absentee ballot if he is away from his municipality at the time of an election, or if he is prevented from going to the polls by physical disability. Servicemen and federal employees on foreign service (including their spouses, parents, and children) may also vote by absentee ballot. Written application must be made for the ballot, which will be sent to the voter with instructions for certifying and mailing. A voter who will be absent from his city or town on election day and has no address from which to mail a ballot may vote ahead of time in the presence of his town or city clerk. The law does not permit absentee voting in primaries, but covers all city and town elections, regular state and national elections, and special elections for congressmen, state senators, and representatives. Voting laws have been modified in Massachusetts over the years to extend the franchise. A proposed constitutional amendment to lower the voting age from twenty-one to nineteen years of age was given approval in 1967 by the legislature in a joint session for considering constitutional amendments. If the measure is approved in 1969 or 1970, it could be placed on the 1970 ballot to take effect in the 1972 election. Four states now allow citizens under twenty-one to vote. They are Georgia and Kentucky, where the voting age is eighteen; Alaska, where the voting age is nineteen; and Hawaii, where the voting age is twenty. NOMINATING CANDIDATES Party conventions are one method used to select nominees for state office. Major parties holding conventions in the 1960's were the Democratic and Republican parties. Minor parties using conventions were the Prohibition and Socialist Labor parties. Convention delegates are chosen by local

6

PARTICIPATION IN MASSACHUSETTS GOVERNMENT

town and ward committees. Massachusetts political parties may hold preprimary conventions before June 15 in the years when state constitutional officers are to be elected. The convention may endorse candidates for governor, lieutenant-governor, state secretary, attorney-general, treasurer, auditor, and United States senator. This endorsement can then appear on the primary ballot. Endorsement by the convention can lessen the financial burden of campaigning for the endorsed candidate. Other candidates can, by petition, appear on the party primary ballot even though they did not receive convention endorsement. A petition candidate must get a given number of signatures (which varies with the office sought and his strength in the party convention held previously) from voters in his own party or from voters unenrolled in any party. Massachusetts state primary elections are held in early September in even-numbered years. At this time major party candidates for state, county, and some federal offices are nominated. Only the Democratic and Republican parties presently qualify as major parties entitled to a state primary election. State candidates nominated every two years in primaries include members of the executive council, state senators, and representatives. Every four years in the even-numbered off-presidential year constitutional officers are nominated. They include the governor, lieutenant-governor, state secretary, attorney-general, treasurer, and auditor. Terms for county officials and the years in which they are elected vary. District attorneys are elected every four years, while the offices of register of deeds, clerk of courts, county treasurer, register of probate, and sheriff are filled every six years. County commissioners have four-year terms. Two are chosen at one election and the third is chosen at the next biennial election. Party candidates for United States senator are nominated in a six-year cycle. Because the terms of the two Massachusetts senators are staggered, there will be nominations in 1970, 1972, 1976, and 1978. Candidates for Congress are nominated every two years. In presidential years, primary elections are held on the last Tuesday in April. At this election delegates and alternates to national party conventions are chosen, and the voter has an opportunity to indicate his choice for president. Delegates to the national party conventions are bound by the presidential preference of the electorate on the first ballot for presidential nominations, unless they have been released by the candidate. Although there is little emphasis on the fact, this election determines state and local party structure through the election of members of ward, town, and state party committees.

VOTING AND ELECTIONS

7

GENERAL ELECTIONS The state election is held on the first Tuesday after the first Monday in November in even years. Federal, state, and county officials are elected; votes may be cast on ballot questions, initiative petitions, initiative amendments, and referenda. At these elections the voter may choose from the candidates of all the contending parties. A Massachusetts ballot may include candidates from major parties, minor parties, new parties, and independent candidates as well. Major party candidates appear on the ballot after nomination by state party primaries. New parties may have the names of their candidates printed on the ballot if they produce nomination papers signed by a number of voters equal to 3 percent of the total vote cast for governor in the preceding gubernatorial election. Minor party candidates appear on the ballot after selection by party convention. Independent candidates may have their names appear on the regular election ballot by filing election nomination papers, which are distinct from primary nomination papers. Sticker candidates and write-ins are permitted in regular state elections and in state primaries. State elections in Massachusetts are administered by the department of the state secretary. The secretary provides free election materials to cities and towns and mails information to every voter about questions on the ballot. All nominations and other papers are processed and recorded in the office of the secretary. He is also responsible for tabulating the state primary votes. State election results are tabulated by the governor and council. Protests or questions pertaining to certificates of nomination or nomination papers or withdrawal of nominations for all state primaries and elections are submitted to the State Ballot Law Commission, an independent agency that serves directly under the governor and council. This is a three-man commission, appointed by the governor with the consent of the council, and must always contain one member from each of the two major parties. Town or city elections vary in respect to dates and the number and types of offices to be filled. It is best to consult the town or city clerk about local elections. Special elections are held when needed to fill vacancies in the office of representatives in Congress, state senator, or state representative. THE BALLOT Massachusetts uses the candidate group ballot. On this type of ballot all candidates for an office are grouped under the designation of that office, and an X must be put opposite the name of every candidate whom the voter wishes to choose. In contrast, some other states use a ballot which lists candidates in separate columns by party affiliation. This tends to encourage voting a straight party ticket by allowing an X at the top of

8

PARTICIPATION IN MASSACHUSETTS GOVERNMENT

the party column to register a vote for all candidates of that party. The Massachusetts ballot necessitates a separate vote for each candidate so there is no mechanical incentive to vote a straight ticket. Massachusetts voters are assured of a secret vote because the state provides a uniform ballot, obtainable only at the polls, and marked in such a way that it cannot be identified. Booths are provided so that the ballot may be marked in private. Each voter places his own ballot in the ballot box, and no one else may touch it after he has marked it until the count begins. Increasing numbers of Massachusetts cities and towns now use mechanical or electronic voting devices rather than paper ballots. Thirty-three municipalities used voting machines in 1968. Several communities are experimenting with different types of punch-card or electronic balloting. Ballot Questions Four classes of questions may appear on the ballot. ( 1 ) Constitutional amendments must be submitted to the people for ratification or rejection. (2) Proposed laws may be submitted to the people by the process of popular initiative. Referenda questions on laws enacted by the legislature may also go to the voters. (3) Recurring questions on the ballot appear through the action of the legislature. One example is liquor licensing in cities and towns. The licensing laws require that the provisions be referred regularly to the voters, who may choose the options they desire for their particular city or town. (4) Questions of public policy may also be referred to the voters. These may be placed on the ballot by petition for the instruction of a particular senator or representative. In certain instances ballot questions may ask for the opinion of all the voters in the state on amendments to the federal constitution. Initiative and Referendum The popular initiative and referendum were established by the 1917-1919 constitutional convention. The initiative petition allows direct lawmaking by the citizens. Exempt from the initiative petition are measures relating to religion, the judiciary, or to a particular locality. No specific appropriation of money may be proposed by initiative petition. Also exempt are propositions inconsistent with the Declaration of Rights in the state constitution, or matters that are specifically excluded by other provisions of the constitution. The procedure for filing an initiative petition with the legislature is far more complicated than that for filing an ordinary bill. The petition must first be signed by ten qualified voters of the Commonwealth, and submitted to the attorney-general not later than the first Wednesday of August pre-

VOTING AND ELECTIONS

9

ceding the legislative session. The attorney-general must certify that the petition is in proper form for submission to the people, and that it contains no subjects excluded from the popular initiative. The petition is then filed with the state secretary, who provides blanks for subsequent signers and prints at the top of each blank a fair, concise summary of the proposed measure together with the names and residences of the first ten signers. Thereupon the initiative petitions must be signed by a number of voters equal to 3 percent of the votes cast in the preceding gubernatorial election. These signatures must be filed with the state secretary not later than the first Wednesday of the following December. The petition is then transmitted by the secretary to the clerks of the legislature. If passed by both houses, an initiative petition becomes law without going on the ballot. If the legislature fails to enact an initiative petition by the first Wednesday in May, the petitioners must secure an additional number of signatures. The petition then appears as a question on the ballot in the November election. To become law, an initiative petition must be approved by 30 percent of the total number of voters casting ballots in the election, and it must also receive a majority of the votes cast on it. Amendments to the constitution may also be made as a result of initiative petition. This process differs slightly from the regular initiative and is described in the chapter on the constitution. Between 1918 and 1968 sixteen initiative petitions were submitted to the voters. Of these six were adopted and ten defeated. In 1938 the voters approved an initiative constitutional amendment for biennial legislative sessions. This was later annulled by a regular legislative amendment which reinstated annual sessions. The referendum provision allows laws already passed to be taken to the people for their approval or rejection. As in the initiative, matters relating to religion, the courts, and specific districts are excluded. To repeal a new law, a petition for a referendum must first be signed by ten voters and filed with the secretary of the Commonwealth not later than thirty days after the law is enacted and signed by the governor. The secretary then provides blanks which must be signed within ninety days after the law takes effect. If the petitions are signed by a number of qualified voters equal to at least 1.5 percent of the vote for governor at the preceding state election, the secretary submits the law to the people at the next state election. If less than 60 days intervene between the filing of the signatures and the next state election, the referendum must wait for voter action until the following state election two years later. Of course the legislature may act in the meantime to repeal the law. Referendum procedure also stipulates that the petition may request suspension of the law until the people have an opportunity to vote on it. This requires additional signers. In order to repeal the law, a majority of those voting on the referendum must

10

PARTICIPATION IN MASSACHUSETTS GOVERNMENT

constitute at least 30 percent of the total ballots cast and must be in the negative. Thirteen referenda petitions have appeared on the ballot since 1918. Seven laws were upheld and six were rejected. The state secretary must send the full text of each initiative referendum that will appear on the ballot, together with the committee reports of the legislature and other information pro and con, to every voter in the state. The governor has no veto on either initiative or referendum measures.

2 Political Parties It would be difficult for the average American to imagine any sort of political activity in the nation or in the state that did not involve political parties. Yet in neither our federal nor state constitutions is there any mention of parties. Political journalist Herbert Agar, who believes that parties were a necessary development under our federal system, says that the parties "form the heart of the unwritten constitution and help the written one to work." 1 Almost since its beginning, our form of government has operated through the political party system, although a large number of citizens registered as party members do not participate actively in the functions of the parties. This is true on a national basis as well. Because so many basic political decisions are made by local and state party committees, including the choosing of candidates and the development of a platform, an individual citizen's political effectiveness can be greatly strengthened by active party membership. The organization of the major parties in Massachusetts is affected by state laws and by both state and national party rules. The character of our state political parties is influenced by national party issues and ideology as well as by Massachusetts problems, conflicts, history, and social and economic development. In evaluating the influence of Massachusetts political parties on state government, observers and participants must take into account both formal party structure and the peculiarities of a long state history. 1

Herbert Agar, The Price of Union (Boston, 1950).

POLITICAL PARTIES MAJOR PARTY CHARACTERISTICS Martin J. Nolan wrote in the Boston Globe, "The major parties in Massachusetts have provided an arena for class warfare, dynastic struggles, ethnic solidarity, social snobbery, musical comedy . . . everything, that is, except politics in the ideological sense of the word." 2 Certainly Massachusetts politics have often reflected the conflicts of social and economic groups within the state. The Republican and Democratic parties in Massachusetts are strikingly different both in the people they represent and in the way their organizations function. Historically, the Democrats have represented the urban population, the Republicans the rural. In the popular view, the "Yankees" have tended to be Republican and the "Irish" Democratic, but recent developments have made these characterizations less valid. A new type of economy based on electronics, research, education, and new techniques of business management developed in the 1950's and 1960's, bringing into the state significant numbers of highly educated professionals. These newcomers were not committed to the past history of Massachusetts politics, and often their allegiance to political parties was based on national rather than state issues. Political preferences of long-time Masschusetts residents also changed in this period, partly influenced by population shifts from cities to suburbs. Although the total Massachusetts population had risen from 4,690,514 in 1950 to 5,295,281 in 1965, total voter registration remained around 2.5 million. In 1950 about 26 percent of the registered voters were enrolled as Democrats; another 26 percent were Republicans, and over 45 percent were independents. After that time the number of enrolled Republicans declined somewhat; Democrats increased their numbers significantly; and the number of independents declined. In September 1968 35 percent of the Massachusetts registered voters were not listed as members of either major party; 43 percent were enrolled as Democrats; and 22 percent were Republicans. Despite the growing Democratic plurality, there is a pattern of ticket splitting between state and federal office. The 1956 election gave a majority of Massachusetts votes to a Republican president, but a Democratic governor won the state election. Democratic presidential candidates won Massachusetts in 1960 and 1964, but the voters chose a Republican governor in both those years. 2 Martin J. Nolan, "The Last Hurrahs Are Fading," Boston Globe Sunday Magazine, November 6, 1966.

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POLITICAL PARTIES

13

ORGANIZATIONAL STRUCTURE Boston Globe columnist David Wilson observed, "Every four years, the people of Massachusetts have an opportunity to remake the two major political parties from the grass roots up. They have never done so, but the opportunity is there." 3 Local party committees have powers which can significantly affect political events at local, state, and national levels when they are properly channeled. Party affiliations sometimes determine, even in technically nonpartisan elections, who is going to run for local office. The strongest power of the local committees is the right to choose delegates to state conventions held every four years. This power can give them an important influence on the nomination process for statewide candidates and on the party platform as well. In addition to selecting their own officers and organizing party activities in their own communities, local party committees assist in state and national election campaigns and help with fund raising. Town and ward committees may have a maximum number of thirtyfive members, although they are usually smaller. This number is set before each local committee election by the local party committee then in office. Members of town and ward committees are chosen for four-year terms at the April primary elections, which also determine members of the state party committees and delegates to national presidential conventions. A candidate must meet the following requirements to run for town or ward committees. He must be a qualified registered voter in the particular party in which he seeks committee membership. He must obtain at least five signatures of fellow party members or independent voters and file them with the local board of registrars or election commissioners. Massachusetts law requires that the name of any candidate meeting these requirements must appear on the presidential primary ballot. It is rare for amateurs to follow this approach. More typically, the existing party committee develops a slate of candidates and obtains the five necessary signatures. Their candidates appear on the ballot and are usually elected for the four-year term by a small voter turnout, as low as 10 percent of the registered voters in some years. Occasionally opposition slates are filed in the same manner, and a real battle may develop for control of the local committee. The weakness and near invisibility of many local party committees can be attributed to several factors. The most significant act of a local committee, the selection of delegates to the state pre-primary party convention, occurs only once every four years. There is no clear focus for committee activities between these conventions, although some committees do work closely with local candidates. Those who seek to strengthen local party organizations feel that involvement of more party members will assure that 3

David Wilson, "How to Acquire Political Power," Boston Globe, January 28, 1968.

14

PARTICIPATION IN MASSACHUSETTS GOVERNMENT

the state party reflects the views of the grass roots where election support lies. There has been some interest shown in passing new legislation to allow local party committees to endorse candidates for the legislature and for Congress.4 Such an endorsement might be permitted to appear on the ballot after the candidate's name. Several committees in a state senatorial district or a congressional district may caucus to endorse candidates. A few critics feel the imposition of nonpartisanship on local elections weakens party strength, although this practice is subject only to local ordinance and custom; it could be changed if there were enough local concern. City party committees include all members of the ward committees within each city. Because the city committees have virtually no statutory power, they have played almost no role in the party process. The central organization of the party is the state committee. One of the key powers of the state committee is the selection of electors for presidential elections and preparation of a slate of candidates for delegates-atlarge to national conventions. This power is significant, because in the presidential primaries the voters generally elect the candidates nominated by the state committee, although other candidates may run—either as individuals or as whole slates—by filing nomination petitions. State committee functions also include running election campaigns, raising funds, organizing the state party conventions, and very limited supervision of the local committees. The state committee is composed of eighty members, with one man and one woman elected every four years at the April primary from each of the state senate districts. An individual party member may appear on the ballot as a candidate for state committee by taking out nomination papers and obtaining the signatures of fifty party members or independent voters in his senatorial district. Like the local committees, the state committees elect officers from among their members. They meet as a whole several times during the year, but most business is handled by the executive committees. STRENGTHENING THE PARTY SYSTEM The role of party conventions in Massachusetts' political structure has come in for some criticism by advocates of a strong party system. Party conventions do not always decide the party nominations. A number of times Democratic candidates have been rejected at their own party convention, yet have collected signatures and gone on to the primaries where they have been nominated by a broader party vote. This is costly and 4 Jesse R. Fillman, "Party Reform," State Government and Public Responsibility 1963: Public Confidence and Political Parties in Massachusetts, Tufts Assembly Series on Massachusetts Government, vol. V (Medford, Mass., 1 9 6 3 ) .

POLITICAL PARTIES weakens party influence over candidates, who tend to run on their own issues, rejecting responsibility to the party platform. The party role in nominations may be strengthened somewhat by adopting ballot requirements. A 1968 law required that any candidate receiving less than 20 percent of the convention votes must collect 10,000 petition signatures in order to appear on the primary ballot. Even though the requirements of this law are minimal, they are a step toward the kind of ballot recommendations discussed by some citizens and political scientists. The 1963 Tufts Assembly recommended that each candidate would have to meet the requirement of receiving at least 25 percent of the convention vote in addition to submitting 25,000 petition signatures to be eligible for the primary ballot. 6 New methods for campaign financing might also strengthen party responsibility and at the same time bring a certain public involvement and scrutiny to expensive modern campaigns. Many candidates for statewide office have raised most of their own funds and some have operated on a personal basis with little regard for their own party or its platform. One proposal would allow individuals a limited tax credit on the state income tax for contributions to state political parties. Another would allow a tax deduction for the same purpose. Carefully worked-out tax incentives for contributions by business and industry to political parties might also be developed. The effect of establishing a ceiling on campaign expenditures is debatable. In some instances, it may merely lead to a multiplicity of special committees, each working for the same candidate or slate, each spending the full amount permitted by law, but totaling a far greater amount. Massachusetts has a campaign disclosure provision in the Corrupt Practices Act. It sets a ceiling of $3,000 on the amount any one person may give to a candidate or his committees each year. It requires that all contributions be deposited by the candidate or committee in a special bank account with names and addresses of contributors. Campaign expenses must be paid from the account, and bank records of contributions and expenses must be sent to the state secretary every two weeks between July 31 and the election. The secretary is required to inspect all bank statements and to notify any candidate if his records do not conform to law. The attorneygeneral is empowered to initiate legal proceedings if the law is violated. Much of the effectiveness of this law relates to public attitudes and awareness of campaign expenditures, rather than legal mechanisms. Candidates for public office ultimately put their case to the voters, and it is their values which will determine campaign practices. " "Final Report," State Government

and Public Responsibility

1963, p. 174.

16

PARTICIPATION IN MASSACHUSETTS GOVERNMENT THE CITIZEN AND THE MAJOR POLITICAL PARTIES

To be a member of either major political party can mean almost as much or as little to a citizen as he wishes. Many people consider themselves "good Democrats" or "good Republicans" if they vote the straight party ticket at regular elections. These citizens help their party maintain power, but they are not exercising responsibility to see that the power is wisely used. The citizen who votes in his party's primary has taken a first step toward responsibility. By selecting from a number of candidates the one he thinks best qualified for the position, he is helping to form the character of his party. The citizen who, in addition to voting in the primary and the regular election, contributes time or money to help his party in its work is carrying his responsibility still further, and will have more of a voice in shaping his party's policy. Clerical work, telephoning, fund raising, and canvassing are among the routine jobs necessary before elections. To do active work in the party of his choice, the voter may volunteer through a member of his town or ward committee, or he may approach an individual candidate with an offer to help. The citizen who becomes a member of his ward or town committee, or runs for elective office, begins to assume some of the more serious responsibilities associated with active leadership of the party. The large percentage of registered voters not enrolled in any party may run the gamut from indifference that stops just short of not voting at all, to genuine and responsible political independence. Some people who do not wish their names identified with either party vote only in the regular elections, never in the primaries. By this practice they forego the opportunity to help nominate candidates of their preference. Massachusetts election laws permit an unenrolled registered voter to vote in the primary. By requesting the ballot of either the Democratic or Republican party at the primary, he can temporarily join that party for the purpose of nominating candidates. After the primary, any voter who does not want a permanent party label may go to the election commission or registration office and ask to have his party designation canceled. He then returns to "independent" status, free to choose which party he will join in the next primary. Of course any voter, whether or not he has a party designation, is free to pick candidates from any party at the regular election, and may vote a straight ticket or split his vote. The independent voter is also permitted to sign nomination papers for any party candidate. The choice of party alliance for the politically responsible voter probably depends on his own political philosophy, his particular governmental interests, and his perception of the two major parties as state, national, and local forces. For practical purposes, we are living under a two-party

POLITICAL PARTIES system of government, and party policy is molded primarily by those who join and work in the parties rather than those who judge them from outside. Nevertheless, with so large a proportion of independent voters in Massachusetts, both major parties must seek the good opinion of the independent voters in order to be successful. The independent who is primarily interested in particular governmental issues may concentrate on arousing public opinion to the merits of these issues with the hope that they will be supported by both parties.

PART

II

T H E MAKINGS OF MASSACHUSETTS GOVERNMENT

3 History and Background The pattern of government in the Commonwealth of Massachusetts can scarcely be understood without reference to its past, which gave us the priceless traditions of freedom and justice and a determination to make an orderly society. These traditions still inspire us today, but the concept of what kind of government and how much government is necessary "for the general good" has grown, altered, and inevitably become more complex over the past three centuries. SETTLEMENT A N D GOVERNMENT: FROM COLONY TO STATE There were settlements on the shores of New England before the Pilgrims landed at Plymouth, but they were transitory fishing stop-overs for men whose real homes were in other lands. The first permanent New England settlement was the one all of us know — the Pilgrim settlement in Plymouth in 1620. Plymouth and the subsequent Puritan establishment on Massachusetts bay set the pattern for present-day Massachusetts. The first settlers in both these colonies were men of substance, determination, and education. They were conservatives, not idealists or revolutionists. Believers in the law of God as set forth in the Bible, they were unyieldingly opposed to any government, either religious or civil, which claimed the authority to interpret or to contradict that law as they understood it. They came to America not to seek religious freedom for all but to set up for themselves a govérnment in which their own religion would prevail freely. They had experience in business affairs and self-government and were determined to establish and maintain a religious commonwealth. This purpose, rigorously executed, was to have a lasting effect on the growth of the colony. Before their ship landed at Plymouth, the travelers on the Mat/flower agreed that they would combine "into a civil body politic" in order to "enact, constitute and frame such just and equal laws, ordinances, acts, constitutions and offices — as shall be thought most convenient for the general good of society." The government was to be based on the principles of

22

THE MAKINGS OF MASSACHUSETTS GOVERNMENT

equal rights for participants in the government, and common duties for justice, order, and the safety of the whole community. Their Mayflower Compact was the first evidence of self-government in New England and was the basis of the government set up in Plymouth colony. Unlike the later Massachusetts Bay colony, the Plymouth colony was never granted a charter. Until the amalgamation of the two colonies in 1691, Plymouth was governed under the Mayflower Compact and under the Warwick Patent, which granted to William Bradford and others the authority to make laws within an area comprising the present counties of Plymouth, Barnstable, and Bristol. A reasonably democratic government was erected, at first as a town meeting, which elected the governor and his assistants. Later, as the population grew and spread into the surrounding territory, the pure democracy was abandoned in favor of a representative democracy, and in 1639 the first general representative assembly met in Plymouth. In its early years, greater civil and religious tolerance could be found in Plymouth than in the neighboring Massachusetts Bay colony, but this gradually decreased, until by 1691 the two colonies were almost identical in character. Early in 1629 the Massachusetts Bay colony secured commercial backers, following the successful example of the Plymouth Bay colony. Chartered in England, the Massachusetts Bay Company was made up of well-to-do and strongly religious men. The company followed the pattern of similar contemporary English trading companies whose purpose was to develop foreign commerce, but the promoters of the Massachusetts Bay Company appear even from the beginning of their undertaking to have had larger aims. As was customary in such trading companies, the freemen (or stockholders ) were to choose a governor, a deputy governor, and eighteen assistants, who with the governor would constitute a court of assistants for the management of the company's affairs. Four times a year, there was to be a "great and general court" of the freemen of the company. At these meetings the freemen, always to include the governor and six assistants, might make laws and ordinances "for the good and welfare of the said company, and for the government and ordering of the said land and plantation, and the people inhabiting the same . . . so as such laws and ordinances be not contrary or repugnant to the laws and statutes of England." Also at these meetings, new members might be admitted to the "freedom" of the company, and at the Easter meeting, the governor, deputy governor, and other officers were to be chosen by the freemen present. In these provisions may be found the framework of the later government of the Commonwealth. Shortly after the Massachusetts Bay Company received its charter, political and religious dissension in England reached serious proportions. Within six months, steps had been taken "to transfer the government of the plantation to those who shall inhabit there." Twelve gentlemen, most of them already members of the company, agreed to emigrate, provided that

HISTORY AND BACKGROUND

23

the government of the plantation would be so transferred, and steps were taken to change the company from a financial organization to a land-holding and political corporation. The first emigration, of nearly one thousand persons, took place in the spring of 1630; a second group followed at once; and by the end of that year there were about two thousand persons settled in New England around Massachusetts Bay, in the localities that later became the towns of Charlestown, Boston, Medford, Watertown, Roxbury, Lynn, and Dorchester. Though the immigrants were mostly Puritan, only a few of them were actually freemen or stockholders of the Massachusetts Bay Company. It therefore seemed to the governor and the assistants that management of the company and plantation could best be carried on through the court of assistants, since at least six of them, with the governor, constituted a quorum for action. During the colony's first four years, this court of assistants was the government of Massachusetts. The other settlers immediately raised objections to this procedure. More than one hundred of them, including prominent nonchurch members, at once petitioned to be made freemen of the Massachusetts Bay Company. But the assistants did not look with favor upon a move toward a more general democracy. By various means, they endeavored to restrict the lawmaking power to themselves, to limit the admission of freemen to church members, and to put the election of the governor and deputy governor into the hands of the assistants. Public pressure was against this exclusive approach, and in 1634 deputies from the various towns set out to establish a system of representative government, fortified by the provisions of the charter. Under this system only the General Court could admit freemen, elect officers, make laws, dispose of lands, or levy taxes. Four general courts were to be held yearly; one would be a court of election, when "every freeman was to give his own voice." At the other three courts, deputies chosen from the various towns were to act. The court of elections became increasingly congested, so in 1647 an act was passed requiring all elections for governor, assistants, and other colony officials to take place in the towns, and specifying that the town deputies bring to the court of elections the "beans, indian corn, and papers" by which the voters signified their choice. Thus the efforts of the court of assistants to limit the power of the freemen were nullified, except for the restriction of suffrage to church members, and perhaps most of the colonists were in favor of that limitation. During this early period, the veto power of the governor and assistants also came under question. The charter had been interpreted to mean that when the General Court met, the concurrence of the governor and at least six assistants was necessary to its actions. This interpretation was neither wholly clear nor entirely popular. After considerable discussion the mem-

24

THE MAKINGS OF MASSACHUSETTS GOVERNMENT

bers resolved the conflict, in 1644, by providing that the deputies and the court of assistants should meet separately, and the concurrence of both would be necessary for the passage of the laws. Judicial functions for the colony had been assumed by the assistants, who individually acted as magistrates. The General Court had subsequently taken judicial power also and claimed supremacy in this respect. When exercising judicial power, both houses of the General Court sat together and reached decisions by majority vote of the whole membership. Between sessions of the General Court, the authority of the assistants to act as magistrates seemed to be limited only by the Bible and their own good judgment. To the freemen, it appeared that their discretion and powers in this capacity were somewhat overwhelming. The freemen therefore began a long agitation for a code of laws by which the magistrates might be guided. In 1641 the "Body of Liberties" was written. This was a sort of bill of rights, rather than a code of laws, and it did not really satisfy the freemen, who were seeking specific rules to limit the discretion of their magistrates. Finally, in 1648, a codification of the statutes of the colony was completed. This was an important step in the struggle to limit the power of the magistrates, and formed the basis of law in Massachusetts for the remainder of its colonial history. Next, the freemen attempted to supplant the magistrates by establishing a sort of recess committee of the General Court "to order all the affairs of the Commonwealth." This proposal was ultimately submitted to the clergy, acting as a sort of supreme court. They sustained the interim power of the magistrates and assistants, but made the very important decision that the magistrates could not "dispense justice in the vacancy of the general court without some law or order of the same to declare the rule" and that "no magistrate hath power to vary from the penalty of any law without consulting the General Court." The steady limitation of the power of the assistants and the governor, the creation of a body of laws, and the assurance that the men entrusted with the administration of the affairs of the colony must abide by those laws are the notable features of the first years of the Massachusetts colony. The colonial leaders were generally men of ability and integrity, and the colonists' trust in these men is indicated by their reelection, year after year, to important posts. Yet from the beginning, Massachusetts citizens appear to have cherished the purpose later stated in the Massachusetts constitution: "to the end it may be a government of laws and not of men." According to modern standards, the actual government of the colony was far from ideal. Though representative in some ways, it was essentially a theocracy. The franchise was restricted to church members — and those specifically members of the Congregational Church, certified by their ministers to be of orthodox principles and "of good lives and conversations." The

HISTORY AND BACKGROUND

25

clergy, moreover, were not only empowered to qualify and disqualify voters, but were also consulted about all important civil matters, such as the question of magisterial discretion mentioned above. The Bible was not infrequently quoted along with the civil law as a basis for the punishment of civil offenders. Nonchurch members, though unable to vote, were required to attend church and to pay taxes toward church support. (This latter situation continued until 1833. ) Treatment of members of other churches varied. There was little outright persecution of other sects, but banishment was provided as a penalty for public dissent with the established church, and Roman Catholics and Quakers who refused to accept the sentence were liable to be put to death. This extreme penalty was carried out in the case of four Quakers in 1661. The theocratic character of the colony's government, together with the colony's commercial policy, was mainly responsible for the withdrawal of the colony's charter in 1684. After enduring a period of change and uncertainty under a temporary government and a brief interim as a province under Sir Edmund Andros, the colony received a new charter in 1691, and some of the defects were remedied. Under the old charter, the vote had been restricted to church members — probably never more than one fifth of the male inhabitants. All legislative power had been vested in the General Court, which also held final judicial power and recognized no appeal to England. The powers of the elected governor were limited except insofar as he acted with his assistants to exercise the executive powers, to fulfill the judicial functions, and to sit as one branch of the General Court. The governor had no individual veto in legislative matters. The new charter brought marked changes to the Massachusetts colony, some beneficial, some disruptive. Suffrage was granted to property holders regardless of church membership. The governor, lieutenant-governor, and secretary were appointed by the king and responsible to him. The freeholders (property owners) elected the House of Representatives, who then chose, with some restrictions as to residence, 1 the twenty-eight members of the council or upper house, subject to the approval of the governor. Bills passed by the two houses were subject to the approval of the governor and might also be vetoed by the king. The governor could appoint militia officers and, with the consent of the council, judges and other court officers. He could not raise funds except by consent of the deputies, but his warrant was necessary before money could be spent. The salaries of the governor and the judges were under the control of the House of Representatives. The new charter, moreover, gave guarantees to the individual citizen. 1 Eighteen had to be inhabitants of land-holdings in Massachusetts, four in what had been the Plymouth Colony, three in Maine, and one in the territory to the north. Thus the upper house was faintly representative.

26

THE MAKINGS OF MASSACHUSETTS GOVERNMENT

Liberty of conscience was secured, though only to Protestants, and natives and inhabitants of the colony were given "all liberties and immunities of free and natural subjects — as if they were born within the realm of England." The 1691 charter made the colony less independent, more subject to the English crown, but at the same time, sought to relieve the individual citizen from the rule of the church and to give him a more equitable share in the colony's government. In other words, this charter tried to give the inhabitants of the colony more self-government, yet made the colony as a whole more dependent on England. The next eighty-three years demonstrated that these two purposes could not be reconciled. Hardly had the charter been established when a long struggle began between the popularly elected House and the royal governors to recapture some of the colony's former independence. In the first four sessions of the General Court after 1691, forty-five acts were passed, of which fifteen were subsequently prohibited by the governor or by the king because they tended in some way to nullify the new charter. But the members of the Massachusetts assembly rapidly became adept in the use of the two constitutional weapons given them by the charter. Both measures were financial. The House had the power to grant the governor's salary; and money was raised by the House, but could only be expended by the governor and council. It soon became apparent that the first of these provisions made it possible for the House to pay or withhold pay, depending upon its approval or disapproval of the governor's conduct. In 1728, the government in England ordered Governor William Burnet to insist on a fixed annual salary of one thousand pounds. This he demanded, but the House stubbornly refused, offering him instead a single payment of as high as six thousand pounds. Burnet refused to be tempted and would not take the money. Some years later, however, a new governor virtually acceded to the assembly's terms by accepting the annual grants made to him, and thus left the House free to exercise this yearly means of pressure. Two things resulted from the House's actions. When, in 1771, the crown began to pay the governor's salary from England, the House of Representatives violently opposed this new step, hastily voted the governor's salary, and demanded (unsuccessfully) that he refuse the British payment. Second, the Massachusetts constitution adopted in 1780 provided, "As the public good requires that the governor should not be under the undue influence of any of the members of the general court by a dependence of them for his support . . . it is necessary that he should have an honorable stated salary, of a fixed and permanent value . . . and established by standing laws." After the House failed to gain approval of an act which virtually denied the right of Parliament to tax the colonies, the members made use of their second weapon. Money, though expended upon the governor's warrant, was

HISTORY AND BACKGROUND

27

raised by the House, and that body began a series of attempts to tie the raising of money to the purposes for which the money was to be spent. At times during the years of this charter the colonial treasury was completely empty because neither side would yield — the assembly would pass laws to raise money for specific expenditures, and the governor would consistently veto them. The controversy was never wholly settled. It may well be that some of the tax laws of the Commonwealth today which earmark funds for a specific purpose stem from this policy of the colonial assembly. Relations between Massachusetts and England rapidly worsened, until by 1774 the English Parliament regarded the situation as practically hopeless, and passed a series of acts that almost completely nullified the charter. The council, previously elected by the popularly chosen assembly, was to be appointed by the crown, as were the magistrates. The town meeting, the heart of New England community life, was forbidden, except upon call of the governor. Persons indicted for murder or any other capital offense might be tried in England. Soldiers were to be quartered among the inhabitants of Boston rather than in the government buildings. The province of Quebec was enlarged so as to preclude the western expansion of the New England colonies and was to have no locally controlled self-government. Finally, the Port of Boston was to be closed, and the customs house removed to Salem. It would have been difficult to design legislation more calculated to inflame the citizens of Massachusetts. During the summer of 1774, General Gage came to Boston as governor, with soldiers to enforce these laws. As matters moved toward an open break, the Massachusetts assembly decided to form itself into a provincial legislature, meeting without the governor or council, for the direction of the affairs of the Commonwealth. The following year, upon the advise of the Continental Congress at Philadelphia, a temporary government was set up. A provincial assembly was elected on June 19, 1775, and convened a month later. The assembly elected a council, gave it both legislative and executive powers, and chose a president. For five years during the Revolution, this was the government of the Commonwealth. Independent though it was, this government had basis only in the minds of its makers, and consequently demands arose almost at once for a constitution as the concrete framework of government. Accordingly, in September 1776, the House requested the towns to vote whether or not they wished the two branches of the General Court to go into joint convention in order to frame a constitution, and whether they wished to publish it for the "perusal and inspection of the inhabitants before the ratification thereof by the Assembly." Less than half the towns voted at all, and though a majority of those that did were willing for the General Court to frame such a constitution, a considerable number felt that a convention should be chosen solely for that purpose. In the following year the General Court went into conven-

28

THE MAKINGS OF MASSACHUSETTS GOVERNMENT

tion over the protests of some of the towns whose residents wanted a general rather than a legislative convention. In February 1778 the legislature submitted a constitution for popular approval. It was overwhelmingly defeated. This defeat was influenced by the sentiments for a popular convention and also by the publication of a remarkable pamphlet called the Essex Result. This pamphlet, which was written by Theophilus Parsons and adopted by a convention of delegates from Essex county, set forth the principles upon which a constitution should be based. It stressed the necessity of a bill of rights, urged a proper separation of powers among legislative, executive, and judiciary branches, made plain the arguments in favor of a bicameral legislature, recommended that complete freedom of conscience be safeguarded, and strongly suggested that a special convention be called to form a constitution. The Massachusetts constitution, and later the federal one, were to profit by this thoughtful treatise. Finally the General Court resolved that the towns should elect delegates to a convention to be held at Cambridge on September 1, 1779. In the election every freeman over twenty-one could vote. Accordingly, the convention assembled and proceeded to debate over the next six months the provisions of a constitution, of which John Adams was largely the author. There were hot disagreements, chiefly over the articles on religion, religious qualifications for office-holders, executive veto, separation of powers, representation for the towns, and personal liberties. Some of these problems were not settled for many years. Provisions for ratifying the new constitution were interesting. In order that the entire document might not be rejected, as had happened in 1778, it was agreed that the towns should discuss it in its entirety and not only vote for or against it, but also submit amendments covering their objections. In other words, the convention asked the towns whether it should, upon an affirmative two-thirds vote, put the constitution into effect, and also for permission to amend it if two thirds apparently wished such amendment. After this process the constitution would be established as law, without further approval. The voting and the counting of the vote were somewhat complicated by the problem of amendment, but when the convention met for its final decision and received the votes, it was moved and passed that "the People of the State of Massachusetts Bay have accepted the Constitution." And, by the verdict of history, they had cause to be well satisfied with their work. DEVELOPMENT OF POLITICAL PARTIES Massachusetts ratified its own constitution in 1780, and nine years later the federal Constitution. A new chapter began in the history of the

HISTORY AND BACKGROUND

29

state. A framework for the new government had been designed. Now began the process of making it work and of keeping it responsive to the needs of the people who created it. A most important development in this period was one which the founding fathers did not plan, and which many of them would have deplored — the creation of the American system of political parties. During the early days of the Massachusetts colony, as well as during the revolutionary period, groups had worked to influence the political life of the community, but these had not been parties in any modern sense. It required the great issue of the formation and nature of the federal union, and the consequent struggle over ratification of the federal Constitution, to produce the beginnings of the modern party system. The Massachusetts scene must be viewed against its national background. The first American political party was the Federalist party. Its leaders included most of the men who had taken part in framing the Constitution, with Alexander Hamilton perhaps the foremost among them. They had the support of the merchants, the lawyers, the property-owners, all of whom stood to profit by sound money and the promotion of commerce and industry. Popular approval of the Constitution and the proposed federal government was sufficient not only to secure ratification, but to insure that a majority of those elected to Congress in the new government would be Federalists. George Washington believed in a strong central government, but he did not think of himself as a party man, nor did he act as a party man in setting up his cabinet. It contained both Hamilton and Thomas Jefferson, Hamilton's most important opponent. Before the end of Washington's first administration, Jefferson, believing that Hamilton's policies were ruinous to the agricultural states and likely to lead to the suppression of men's liberties, set out to build a party which would drive the Federalists from power. He called it the Republican party, since he believed that he and his associates were the true friends of the republic, 2 and its cardinal principle was that the federal government should have only those rights that the states and the people had expressly granted in the constitution. Composed of many dissatisfied groups in the country, and drawing its principal strength from the newly settled western sections and the agrarian south, the Republican party drove the Federalists from power in 1800. Why had the Federalists lost ground so rapidly? Mainly, perhaps, because they had no popular appeal once federal union was accomplished. Many of the Federalist leaders sincerely feared democracy. They believed that the country's best interests demanded government by the stable and property-owning classes. They abhorred the idea of building a party based 2 It is sometimes called the Democratic-Republican party and sometimes in its later years the Democratic party, but we shall use the name Republican to avoid confusion.

30

THE MAKINGS OF MASSACHUSETTS GOVERNMENT

on broad popular support. Jefferson and his associates, on the other hand, sincerely feared a strong government in the hands of the few far more than they feared the rule of the people. They regarded the Alien and Sedition Laws, passed by the Federalist Congress in 1798, as a means to consolidate the rule of the few by taking away the liberties of the many. The new Republican party, inspired by Jefferson's belief in the people and the people's constitution, was able to make the popular appeal which the Federalists had almost willfully avoided. During the next fifteen years, and through the War of 1812, the Federalists continued to form an energetic opposition to the Republicans in Congress. But in the latter days of that war, the New England Federalists, demanding sweeping constitutional change and threatening secession, brought their party into national disrepute, and the party eventually disappeared from the national scene in 1816. The country was left with what amounted to a one-party system. Though many statesmen were delighted at this development and hailed the "Era of Good Feeling," events soon proved that their enthusiasm was misplaced. Personal and sectional factions developed in Congress, the absence of a critical and united opposition made party discipline unnecessary, and the President was unable to exert leadership. In 1825, during John Quincy Adams' administration, Andrew Jackson set out to build a new party. Jeffersonian in his methods if not in his principles, Jackson brought together many diverse local political groups, asking only that they agree on the basic point that they disliked the administration in power. The new Democratic party was successful, and Andrew Jackson became President in 1828. Here in Massachusetts the battle for ratification of the federal Constitution had been a close one, indicating that political opinion was strongly divided. Delegates from the eastern counties had voted for ratification, but delegates from the western counties and the district of Maine had shown by their negative votes the distrust which the small farmers felt for the proposed strong central government. So close was the vote that ratification was possible only when the Federalists agreed that a bill of rights should immediately be added to the Constitution, to overcome the objections of such men as John Hancock and Samuel Adams. Once the Constitution was ratified, public sentiment was in favor of the men who had worked for its adoption, and until 1804 Massachusetts voted Federalist in national politics. During this period the legislature in Massachusetts was also Federalist, but the personal popularity of Hancock and Adams was such that either of them could have the governor's seat whenever he wished it. By 1804 Federalism appeared to be on the wane in Massachusetts as elsewhere. Then Massachusetts commerce suffered severely from Jefferson's

HISTORY AND BACKGROUND

31

Embargo Act of 1807, which was designed to keep American vessels out of foreign waters and thus to minimize the danger of war with Great Britain. Federalist opposition to this act was supported strongly by most of the people of Massachusetts, and the act was repealed. In the prosperity which followed the repeal, the Republican Elbridge Gerry was elected governor in 1810. Gerry's name survives as part of the political vocabulary of the country. Under him, the Republicans, hoping to sustain themselves in power, redistricted the state — a device as old as politics, but not always accomplished so flagrantly. A cartoonist, looking at a map of the South Essex district (now the seventh Congressional) as the Republicans had drawn it, was struck by its likeness to a salamander, and christened it the "Gerrymander." The War of 1812 brought such economic crisis to Massachusetts that the Federalists began to discuss seriously the possibility of secession. The war ended before their plans matured, and their party was discredited nationally as treasonable. Nevertheless, the Massachusetts Federalists kept control of the state for another ten years. After the Jacksonian Democratic party won the national election of 1828, it was opposed nationally by a new coalition party, including mainly the National Republicans and some conservative factions of the Democratic party, and calling itself by the popular old name of Whig. In Massachusetts, the Democrats included such diverse groups as the radical agrarian Republicans from the western counties and the wealthy ship-owners of Essex county, who opposed the protective tariff. The Whigs were supported in Massachusetts by the manufacturing and commercial interests which had supported Adams, and his party dominated the state, with brief exceptions, until 1850. Meanwhile the Democratic party maintained its organization, distributed such federal patronage as came its way, and fulfilled its policies as the party of opposition. Its platform, stated by the first Democratic governor in 1839, included establishment of sound money, opposition to state aid to railroads and other special interests, economy instead of increased taxation, reduction in the use of the death penalty, a secret ballot, and the elimination of the property qualification for office holders. Two minor parties arose in the early 1830's, the Antimasons and the Workingmen. The Antimasons enjoyed a brief success in coalition with the Whigs, after which many of them came into the Whig party; the Workingmen, unsuccessful as a party, mostly took refuge with the Democrats. By 1840 national issues became a controlling factor in Massachusetts politics. When the Whigs were united nationally they also dominated Massachusetts; when they were split the Democrats won. But the Democrats began to be vexed by the struggle over slavery. A new Liberty party, later to become part of the Free-soil party, arose, and the Democratic ranks

32

THE MAKINGS OF MASSACHUSETTS GOVERNMENT

were sufficiently split to allow the Whigs to return to power in 1843 and retain control until 1850. The Free-soil party, which opposed both the extension of slavery and the reaffirmation of the Fugitive Slave Law, by 1850 had superseded the Democrats in second place in state elections. Through a coalition with the Democrats, the Free-soilers ousted the Whigs from all state offices and sent a Free-soiler to Washington as senator, thus replacing Daniel Webster, one of the authors of the hated Fugitive Slave Law. This coalition lasted two years, but it faded entirely when the results of the Massachusetts constitutional convention of 1853, promoted by the coalition, were rejected by the people at the polls. By 1854 both the Whigs and the Democrats were split by the slavery question. Nationally both parties favored compromise in order to preserve the Union, and this was anathema to many men of high principle. The Freesoilers, weakened by coalition, were impotent. At this juncture arose that curious phenomenon, the Know-nothing party. The motivation behind the party is discussed more extensively in the following section on the changing population of Massachusetts. Briefly, it was formed to oppose the entrance into politics of the Irish immigrants. These new citizens were mistrusted by the older settlers for a variety of reasons, one of which was the unwillingness of the Irish to align themselves against slavery at that time. It seems certain that the new party would not have enjoyed its brief but overwhelming success without the aid of the turbulent political situation brought about by the slavery question. In its first election in 1854, the Know-nothing party swept the state and was again successful the following year. The Know-nothing party was consciously used by many of its supporters to disrupt the Whigs and Democrats in the hope that a new party antagonistic to slavery would evolve. After two years such a party, the newly organized Republican, did develop, and in order to maintain their power the Know-nothings were forced to unite with them. The new Republican party, which dominated the state by 1857, is usually considered to be the successor of the Whigs. Actually it was composed of vigorous elements from all the old parties. It supplanted the Whigs, the Free-soilers, and the Know-nothings, but also contained many antislavery Democrats. The Republicans were not an abolition party, though they were opposed to any extension of slavery. The preservation of the union was their prime consideration, but it was not their only one. The Democratic party remained intact nationally and retained the support of those people in Massachusetts who continued to sympathize with the southern cotton-growers until the outbreak of the war. With the beginning of the Civil War, the period of experimental political

HISTORY AND BACKGROUND

33

parties ended. Despite third-party threats and internal revolutions, the Republican and Democratic parties of today are still recognizable as they were in 1860. Interesting conclusions can be drawn from the experience of the years before the Civil War: first, that ours is basically a two-party system; second, that while coalition may bring immediate success, it is ultimately dangerous to a political party; third, that adherence to a single issue may win one election, but may well result in the disintegration of the party. Perhaps the major parties did not draw precisely these conclusions, but they must have discerned both the importance of party loyalty and the necessity of compromise to insure wide public support of candidates and platforms. There have been many "third" parties since the Civil War. First to appear, in the 1870's, were the Prohibition party, the Woman Suffrage party, and the Labor party. Since then, many others have appeared and disappeared. Some have seen only one election, others have been on and off the ballot for years. But such minor parties have never achieved any important success at the polls. They have acted more as pressure groups, giving an outlet to the discontent or wish for reform of various groups in the state. Planks from their platforms have sometimes been adopted by the major parties. Their influence is important, but their role is quite different from the role of the earlier minor parties. THE C H A N G I N G POPULATION OF MASSACHUSETTS The period of important Puritan migration to Massachusetts essentially ended in 1642. After that date, English Puritans found themselves in a more fortunate situation at home, and indeed, quite a few who had come to Massachusetts returned to England to take a share in the struggle that led to the establishment of the Protectorate under Cromwell. For many years thereafter few new settlers came to the colony. The leaders of the Puritan theocracy were determined to protect their colony not only against irreligious influences within it, but against the impact of alien customs and religions from without. Even after the power of the theocracy waned with the new colonial charter, the colony's immigration policy remained much the same, and newcomers were given a scant welcome. The effect of this policy may be seen from a glance at the figures of the 1790 census, showing the distribution of the white population of the Commonwealth. During the next fifty years, the economic and political ferment in Europe brought a slowly increasing tide of immigration to the United States, in which Massachusetts shared. The increase was gradual, and the process of assimilation of the newcomers was relatively successful.

34

THE MAKINGS OF MASSACHUSETTS GOVERNMENT TABLE 2

POPULATION ORIGINS, 1790

English Scottish Irish French Dutch German Jewish Others TOTAL

354,528 13,435 3,732 746 373 75 67 231 373,187

In the 1840's immigration increased markedly. Table 3 shows how the tide of immigration swelled during 1845 to 1855. The sheer physical impact of this flood of immigration would have been enormous even had there been no complicating factors. TABLE 3

IMMIGRATION EXPANSION, 1821-1861

Five-year period beginning

Immigrants entering Boston by sea

1821 1826 1831 1836 1841 1846 1851 1856 1861

2,233 5,727 9,619 12,981 29,564 104,978 109,595 59,527 32,487

Over half of the 214,573 foreign-bom immigrants who reached Boston in the period of greatest immigration came directly from Ireland. Many of the 38,049 from Canada and the 22,777 from England were also Irish. The potato rot and the repeal of the Corn Laws, following upon two hundred years of suppression, absentee ownership, and ruinous agricultural policies, had brought thousands of Irish tenant farmers and cottiers to starvation. At the same time, the Irish Poor Law of 1838 had made it profitable for landlords to evict tenants, and had provided for some assistance to Irish immigration. Thousands of Irish, driven from their homes, arrived in Boston stripped of everything they had possessed. Boston could scarcely have been less prepared to receive them. In the early 1840's it was a slowly growing, well-to-do community of about 120,000 people. Although the city was densely settled, land created by filling the

HISTORY AND BACKGROUND

35

ocean flats had helped prevent an acute housing shortage and also had restricted the number of tenements. The comparative wealth of Boston, the nature of its business enterprises, and its extensive shipping contacts with the rest of the world meant that city improvement and sanitation had reached a high level. Interest in letters, the arts, and social problems flourished. Bostonians were proud of their city — perhaps a little smug. In such a community, a few distressed souls might have found welcome and help. But the realities of the problem raised by the arrival of thousands upon thousands of hopeless, homeless, penniless immigrants were overwhelming. Housing was utterly inadequate for the newcomers. Industry could not absorb them at anything like a sufficient rate. Relief costs mounted. Proper Boston, in the main, was horrified and dismayed. Along with the physical problems presented by these multitudes of newcomers, their Catholicism awoke all the old suspicion, distrust, and bigotry of Puritan days. In the 1830's a small but bitter outbreak had demonstrated that religious tensions existed. By 1830, the Catholic church, through the efforts of several remarkable priests and bishops, had become established in the Boston area. Though many leading Protestants had welcomed this development and had helped to further it, the old antagonism to Catholicism and the distrust, bred from ignorance, of anything "foreign" made a fertile ground for rumor which led to action. In 1834, a convent school in Charlestown (now Somerville), operated by the Ursuline sisters, became the target of malicious and ignorant gossip. Finally a mob attacked the convent, drove out its inhabitants, and burned it to the ground. This was the first and the most serious of a number of incidents extending over a three-year period, during which threats, stonings, and riots were not infrequent in Boston. These "Nativists" outbreaks were essentially a mob phenomenon. It was clear that the responsible elements in the Protestant community deplored such incidents and by 1837 they had virtually ceased. With the new surge of immigration, however, the dying tensions were revived. The Irish newcomers had to be reckoned as a coherent and powerful group. They had learned in their first bitter years in America that political freedom and political power were their only means to social and economic betterment. Consequently, increasing numbers of naturalized Irish voters came to the polls. What was the attitude of these newcomers to American politics and the ever-present problem of slavery? Forced into the worst-paid occupations, huddled into housing areas worse than slums, the Irish had to concentrate on the pressing problems of survival. They had neither the time nor the encouragement to share old Boston's concern with the social issues of slavery or temperance. Although the Catholic church never supported the institution of slavery as such, it also did not share in the antislavery agitation of

36

THE MAKINGS OF MASSACHUSETTS GOVERNMENT

most Protestant denominations, and Catholic newspapers urged their readers to support the law and the country's established institutions. The antislavery agitators met this political force by a new political coalition. The Know-nothing party (which bracketed the southern slave power and the foreign Pope as equally un-American) served as a catch-all for both the high-minded reformer and the bigot. Thus the tensions which in any case would undoubtedly have attended the assimilation of a large and different group reached unprecedented emotional heights and burst into the sphere of political action as the flood of immigration ran headlong into the mounting wave of antislavery sentiment. The Know-nothing party was soon captured by its antislavery supporters, but since it could not cope nationally with the slavery issue the party disintegrated several years after its birth. The antiforeign, anti-Catholic supporters of the Know-nothings were not conspicuously successful in limiting the rights of the newcomers. A constitutional amendment to extend the residence requirement for citizenship passed one session of the legislature but was defeated in the next, and an unproductive investigation of Catholic educational institutions was discredited by the excesses of the members of the investigating committee. Nevertheless, harassment of the Catholic community continued for some years. A lasting effect of the Know-nothing episode was to intensify the identification of "Irish" with "Catholic." The Catholic church in Ireland, under English repression, had developed tough roots. To the Irish poor, it had offered their only security. When the immigrants arrived, the church was there to help and reassure them, a familiar institution in an alien world. Under these circumstances, attacks on the church produced the most fiercely loyal Irish reactions. Years of patient effort by leading Catholics and Protestants have been spent trying to heal the breach made in the turbulent years of the immigration, and later social and political developments can only be understood in the light of the problems raised then. With the outbreak of the Civil War, much of the bitter conflict was resolved. The Irish showed themselves eager to enlist. Their conservative loyalty to the government, once manifested in opposition to the abolitionists, now showed itself in adherence to the Union. A period of quiet was inaugurated, never again to be so tragically interrupted. But the political repercussions of the Know-nothing era are still apparent, and present party alignment continues to be influenced by the forces which it set in motion. While it is important to understand the problems created by the Irish immigration and the problems the Irish themselves had to meet, it must not be assumed that they were the only important group of immigrants. Although Irish immigration was certainly outstanding, many other nationalities and groups have contributed to Massachusetts life since 1850. Immigra-

HISTORY AND BACKGROUND

37

tion from northern Europe, as well as from Canada, continued high during the second half of the nineteenth century. Irish, English, Scottish, Germans, and Scandinavians all came in increasing numbers until about 1890, while the French showed a small but steady increase during the same years. Toward the close of that period, other countries began to contribute substantial numbers of new citizens, Italy and Portugal being the first to do so in larger proportions. By the beginning of the twentieth century, a great majority of the immigrants were coming from southern and eastern Europe, from Austria-Hungary, Bulgaria, Greece, Italy, Poland, Rumania, Russia, Serbia, Syria, and Turkey. The federal immigration laws passed in the 1920s sharply checked this later immigration, since the quota system strongly favored the older northern-European immigration. Table 4 indicates patterns of immigration for recent years as well as some racial and ethnic population figures for 1960. Just as the immigrants of the 1800's influenced social and political history in Massachusetts, blacks, who came to the Commonwealth with the first new settlers, also shaped history. Although early census figures do not reflect their presence, colonial documents indicate there were blacks in Massachusetts in 1638. White New Englanders seemed to have had mixed attitudes about the proper status of blacks. In 1641 the Body of Liberties, the first legal code of Massachusetts, prohibited "bond slavery" for the inhabitants, but allowed enslavement of blacks bought in the international slave trade. 3 Restrictive legislation was enacted in the late seventeenth century, proscribing intermarriage between blacks and whites, setting curfews for blacks, and barring them from participation in the militia. Despite these restrictions, court records show that the administration of justice guaranteed basic legal rights to blacks as well as whites.4 In 1773 a number of Boston slaves unsuccessfully petitioned the colonial legislature for freedom. There is a record of eight such petitions during the Revolutionary War period. Many Massachusetts blacks fought in the very first battles of the Revolution, despite the original barrier against black membership in the militia and the Continental army — a barrier later removed by General Washington. Voting rights for qualified blacks were won in 1783 by a court decision declaring that blacks subject to taxation were entitled to suffrage. Educational rights were the subject of several early petitions, the first being presented to the legislature in 1787 by Prince Hall, a former slave. The first school desegregation suit was filed in a Massachusetts court in 1849 on behalf of six-year-old Sarah Robertson, who had to pass a number of white 3 Carl N. Degler, "Slavery and the Genesis of American Race Prejudice," in The Making of Black America, August Meier, ed. (New York, 1 9 6 9 ) , p. 105. 4 Robert C. Twombley and Robert H. Moore, "Black Puritan: The Negro in Seventeenth Century Massachusetts," in The Making of Black America, pp. 109-124.

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THE JUDICIAL BRANCH

314 Probation Officers

Probation officers are appointed by judges of district courts, the Superior Court, and the Boston Juvenile Court. In district courts outside the central Boston area certain officers specialize in juvenile probation work. The duties of probation officers are primarily the supervision of persons on probation, but also include recommending probation to the judge, informing him of prior criminal records of accused persons, and receiving payments under the Uniform Reciprocal Enforcement of Support Act. They are given the powers of police officers. The probation system (as distinct from parole) is an intimate part of the judicial makeup and is administered by the courts. The Committee on Probation is composed of five members appointed by the chief justice of the Supreme Judicial Court. It appoints the Commissioner of Probation and has the authority to set standards and salaries for probation officers. The Commissioner of Probation may pass on the qualifications of applicants and supervise the training of probation officers. In-service training has been limited because of the level of legislative appropriations. In actual practice individual district court judges hire and train their probation officers, while Superior Court probation officers are screened by the Committee on Personnel and appointed by the justices as a collective body. The probation system is valuable for rehabilitation of criminal offenders, but the work load is heavy. In many district courts probation officers have voluntarily organized and operated special clinics for drug addicts, alcoholics, and juvenile offenders. Clerical help is badly needed. Unless caseloads are manageable and salaries sufficient to attract qualified personnel such programs will not be carried out. In 1968 there were 380 probation officers with an average caseload of 125. Sixty is the caseload recommended by the Commissioner of Probation. Court Clinics

Since 1956 the Department of Mental Health has operated psychiatric clinics within courts throughout the state. In 1968 fifteen clinics staffed by thirty-five psychiatrists, in addition to supporting personnel, evaluated over 4,000 cases. The clinics provide: (1) legal psychiatric services to the judge (sanity and competence determinations, and presentence psychiatric evaluations); (2) consultation services to probation officers for case problems; and (3) mental health services to juvenile and adult offenders under the court's jurisdiction and to their familes. District Attorneys and the Attorney-General

The district attorneys are the legal representatives of the people in the investigation and prosecution of criminal matters. They are elected

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315

for four-year terms in nine districts and are state officers within the department of the attorney-general. Although criminal prosecution is the prime responsibility of the district attorney, his assistants, or municipally retained counsel, the attorneygeneral retains the right in statute, although not in practice, of prosecuting in the place of any district attorney. His office has customarily restricted itself to cases of statewide importance. The attorney-general, as chief legal officer of the state, may advise and consult with district attorneys as well as sheriffs and police chiefs in regard to their respective duties. Board of Bar Examiners The five-man Board of Bar Examiners is appointed by the Supreme Judicial Court and sets the requirements for admittance to the practice of law in the Commonwealth. Written and oral examinations are usually held twice a year. Admission to the bar is granted without examination to attorneys already practicing in states which reciprocate this admission arrangement. The board recommends all qualified applicants to the Supreme Judicial Court, which has final authority. Justices of the Peace The functions of the justices of the peace as local and municipal judges hearing minor offenses have been absorbed into the district courts. Justices of the peace now act as deputies to the clerk of courts. They may be appointed by the governor on petition of the selectmen or aldermen except in a town where the clerk of court resides. They may hear oaths and affirmations, take bail, and may also issue warrants and summonses if they are clerks. ADMINISTRATION OF THE COURTS The goal of effective justice without delay is dependent upon the administration of the court system, the rules of procedure, and the locus of authority for administration and regulation. The nationwide trend is toward a unified court system with administrative authority vested in the chief justice of the highest court aided by an office of administration. In 1968 thirty-three states had court administrators and seventeen did not. The executive secretary of the Supreme Judicial Court is the court administrator for Massachusetts. Although the state is progressing toward a unified court system, at the present time administrative authority is shared by the Supreme Judicial Court, the several chief justices of the lower courts, and the administrative committees.

316

THE JUDICIAL BRANCH Chief Justices

The chief justice of each of the courts is first a presiding judge, but he is also an administrative head. He may assign judges to sit where they are needed and require that records and practices be uniform within the rules set by the Supreme Judicial Court and established by law. The chief justice of the Supreme Judicial Court has additional powers. He appoints the administrative committees of the district court and the probate court, the Appellate Division of the district courts, and may enforce orders of the chief justice and administrative committee of the district courts. Administrative Committees

The district courts (except the Boston Municipal Court) and the probate courts have administrative committees. They are largely advisory to the chief justice, but provide a channel of communication among the courts and supervise record keeping, uniformity of practice, assignment of justices, times of sessions, and collection of statistics on the work of the court. Judicial Council

Massachusetts, in 1924, was the first state in the nation to adopt the use of a judicial council, which thirty-two states now have. The Massachusetts Judicial Council is composed of six judges from the various levels of courts, four members of the bar appointed by the governor, and an executive secretary, the only paid member. The use of judicial councils and conferences is an effort to improve the functioning of judicial administration and to consider substantive law. The Tufts Assembly of 1964 recommended that the judicial council be expanded to include laymen. The council maintains a continuous study of the work accomplished and results produced by all parts of the judicial system and reports annually to the governor. The reports include statistics on the volume of business, recommendations for legislative changes in practices and procedures in the courts, and a draft of bills incorporating these changes. These bills are submitted by the governor as part of his regular message to the legislature. Judicial Conference

The Judicial Conference, created in 1967, is chaired by the chief justice of the Supreme Judicial Court and administered by the executive secretary of the Supreme Judicial Court, who acts as its secretary. All associate justices of the Supreme Judicial Court and the chief justice of each of the lower courts are members, as is the chairman of the Judicial Council. The purpose of the conference is to study and make recommenda-

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317

tions for more efficient and effective administration of justice. The conference conducts legal research and holds educational meetings of judges. The order of the Supreme Judicial Court establishing the conference provides that it shall coordinate activities of the various courts and conduct general conferences of judges, lawyers, court personnel, and state government officials. The order also authorizes the conference to employ the facilities of universities, law schools, bar associations, and foundations to aid in the work of the conference. A similar judicial conference has been effectively used in the federal court system.

COURT FINANCES The financing of the court system in Massachusetts is split between the state and county governments. The county provides quarters for the district, Superior, and probate courts. All costs of maintenance, equipment, and supplies for these courts, plus the costs of jurors, are met by the counties. In addition the counties pay the salaries of district court judges; the state pays $1,000 toward the salary of the chief justice of the district courts. The salaries of all other judges and clerical assistants, plus their travel expenses, are, generally speaking, covered by the state. Suffolk County pays for 70 percent of the maintenance costs of the courthouse in Boston, despite its occupancy by state courts and offices. Only Boston contributes to the costs of Suffolk County. The other cities and towns in the county, Chelsea, Revere, and Winthrop, contribute nothing. The Tufts Assembly of 1964 recommended that all court costs be paid by the state. Revenues received from fees in the probate courts are transferred to the state; those in the Superior and district courts become part of county funds. The Commonwealth pays all expenses of the Land Court itself, but fees are collected from individuals using its services. Counties pay for the maintenance of records in county offices, and fees collected there are returned to the county. The total net cost of operating all the courts rose from $13,204,000 in 1957 to $23,623,000 in 1967. The breakdown of costs in 1967 is shown in Table 10.

TABLE 10

Commonwealth Counties TOTAL

COSTS OF THE COURT SYSTEM, 1967 Gross

Net (after fees)

$ 6,547,863 23,599,651 $30,147,514

$ 5,448,812 18,174,298 $23,623,110

THE JUDICIAL BRANCH

318 COURTHOUSE FACILITIES

Each year the executive secretary in his annual report to the justices of the Supreme Judicial Court mentions the physical facilities of the courts. Having visited nearly all of the courthouses in the Commonwealth, he considers the majority overcrowded, antiquated, and inefficient. Some new courthouses have been built in the state and a few have been remodeled. The problem of replacement or modernization of facilities in the state is compounded by the fact that the counties, not the state, are responsible for providing facilities. Since the counties have no taxing or legislative powers they must obtain approval of enlarged budgets from the legislature to cover such expenditures. A special commission was established in 1965 by the legislature to investigate courthouse facilities. Some funds were appropriated and a preliminary report on Suffolk and Hampden counties was compiled, but the commission's work has been hampered by its need for more funds. THE PEOPLE AND JUSTICE For the average person in the Commonwealth the channels of the courts are open, the right to a jury by his peers is upheld, a lawyer is readily available. But there are many citizens in our society who feel that justice is rationed in favor of the affluent. The Kerner Commission Report of 1968 pointed to a widespread belief that courts discriminate by race and economic level.2 Many city dwellers believe the lower courts act as an arm of the police department rather than as objective arbiters. The treatment of the middle-class offender and the indigent often differs in regard to arrest, bail, and sentencing. In 1963 the United States Supreme Court held in the Gideon case that the Fourteenth Amendment requires states to furnish legal counsel to indigent defendants facing serious criminal charges. Previously, the court had insisted upon the right to counsel only in capital cases and in those involving exceptional circumstances in which lack of counsel resulted in unfair treatment. Judges must now assure legal representation to defendants or risk having their decisions overturned by higher courts. The Massachusetts Defenders Committee was established in 1960 with offices in Boston, New Bedford, Pittsfield, Salem, Springfield, Whitman, and Worcester. It provides legal services for persons accused of crime who lack the means to hire counsel. Between 1966 and 1968 the work of the defenders doubled. Court ' Otto Kemer, ehm., Report of the National Advisory Committee (New York, 1968; New York Times edition).

on Civil

Disorders

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319

work is handled by a staff of fifty-nine full-time lawyers and supporting clerical and secretarial aid. With funds from the federal Office of Economic Opportunity, a Neighborhood Legal Service has been established in Boston, Fall River, Fitchburg, Hyannis, Springfield, and Worcester. These offices offer both legal advice and court representation to anyone unable to pay a lawyer in civil as well as criminal cases. Advice can be sought on matters concerning installment purchases, eviction notices, leases, draft laws, public school suspensions, and various other legal matters. Experiments in cooperation with law schools in the state have allowed students to act as attorneys for indigents in civil and criminal matters. They may also appear for the Commonwealth in district courts (under supervision) in criminal cases involving misdemeanors and felonies. An important change in criminal practice in Massachusetts was the bail reform law, effective in 1966. It has substantially increased the number of releases on personal recognizance of persons accused of misdemeanors. While this kind of reform results in less disruption of the accused's personal and economic life before his guilt is assessed, there is some concern for crimes committed while on bail. Counterproposals for preventive detention are also made for this reason. Victims of violent crimes may be compensated by the state as a result of a law which took effect in 1968. Upon petition to the district court, a victim or his dependent may be compensated for an out-of-pocket loss of $100 or more, or the loss of two continuous weeks of earnings. No award may be larger than $10,000 and any amount reimbursed by insurance or other sources is subtracted from the sum of the award. Since victims of violent crimes are nearly always poor, many believe this to be an excellent reform. There has also been some discussion of compensating defendants in criminal trials who are found not guilty if their defense has imposed a severe financial burden.

PART VI

I N T E R G O V E R N M E N T A L RELATIONS

22 County Government in Massachusetts No study of Massachusetts state government can be complete without some attention to county government and the relationship that exists between the state and the counties. National trends toward regionalization of special services, including medical facilities, waste disposal, police and fire protection, may eventually increase the importance of county government in Massachusetts. HISTORICAL BACKGROUND

The organization and administration of county government in Massachusetts may be traced back to the type of county government prevailing in England in early feudal times. This ancient unit of government was known in England as a "shire" and continued to have this designation until the Norman conquest of England and the adoption of the word "county." Massachusetts centers of county government are still known as "shire towns." By the early seventeenth century, when the English colonists first came to the new world, there were five officers with distinct functions in each English county: the sheriff, who was conservator of the peace and executive agent of the judicial courts; the lord-lieutenant, who was head of the military system; the justices of the peace, who held the chief fiscal and administrative authority, and who formed in each county a quarterly court of criminal jurisdiction; the coroners, who held inquests on violent deaths; and the commissioners, who assessed taxes. This administrative organization is quite similar to that in the county as it has since existed in Massachusetts. In 1643, because of the increase in the number of widely scattered towns, the legislature divided the colony into four counties: Essex, Middlesex, Suffolk, and Norfolk. Each established a government similar to the type its citizens had been familiar with in England. Additional counties were formed later; the last was Hampden county, created in 1812. York, Cumberland, and Lincoln counties were lost when Maine became a separate state in 1820.

324

INTERGOVERNMENTAL RELATIONS

The changes in administrative organization of the counties have been few. In 1652, the offices of clerk of the county courts and recorder were merged. Two years later the counties were each authorized to elect a county treasurer to apportion and collect taxes; and in 1668 the legislature authorized two commissioners for each county, whose duties were to supervise the business of the county, assess taxes, and repair warehouses. By the end of the colonial period all the modern county officers, with the exception of register of deeds and district attorney, had been established in Massachusetts, although the manner of their election and their exact duties have gradually been changed and modified. The office of register of deeds was created in 1715 during the provincial period. The office of "County Attorney" was first established in 1807 for Suffolk county; in 1832 the entire state was divided into districts, and a district attorney was appointed for each. Characteristics of the Counties Today there are fourteen counties in Massachusetts. The size varies from Nantucket, which had a population of 3,714 in 1965, to Middlesex, which had a 1965 population of 1,280,235. The governments of Nantucket and Suffolk counties are somewhat different from those in the remaining twelve counties. The county government in Nantucket is merged with Nantucket town government, and Suffolk county government is partially joined with Boston city government. Characteristics of the counties are shown in Table 11. Counties in Massachusetts and New England are generally far less important governmental units than cities and towns. This contrasts with the situation in the southern and western parts of the United States, where the county is a very important unit in the system of local government. There are few provisions in the Massachusetts constitution concerning counties. Four of the seven elective offices are established by the constitution: sheriff, register of probate, clerk of courts, and district attorney. The constitution also makes county population the basis for apportioning representatives to the legislature. The actual form of county government was never defined by the constitution. County home rule has never been adopted, and there are no optional forms of county government permitted in this state. All governmental services rendered by the county must be authorized by the legislature. Massachusetts counties have no ordinance power and almost no police power. There can be no change in county organization without the sanction of the legislature, which alone has the power to alter county lines, and no statutes have been enacted authorizing counties to combine or to consolidate with cities. There has been no consolidation of county offices or functions.

325

COUNTY GOVERNMENT TABLE 11

County

Barnstable Berkshire

COUNTY CHARACTERISTICS Population (1965)

Budget (1968)

Shire Towns

Incorporation Date

Size (square miles)

1685

411 947

73,557

$ 3,072,471

145,597

1,845,776

Pittsfield

574

415,242

3,976,973

Taunton New Bedford

112

5,948 608,996

6,749,153

Bristol

1761 1685

Dukes Essex

1695 1643

514

Franklin Hampden

1811 1812

697 636

Hampshire

1662

Middlesex

1643

Nantucket Norfolk

1695 1793

Plymouth

1685

Suffolk Worcester

1643 1731

371,256

Barnstable

Edgartown Salem Lawrence Newburyport Greenfield

57,687

958,572

586

435,281 100,065

4,229,276 1,234,336

846

1,280,235

15,017,569

50

3,714 560,137

55,000 5,551,403

Nantucket

408 691

292,697

3,345,080

Plymouth

56 1565

706,216

12,922,869

609,909

6,200,670

Springfield Northampton Cambridge Lowell Dedham Boston Worcester Fitchburg

COUNTY FUNCTIONS Massachusetts counties do not engage in many activities common to American counties elsewhere. No county in Massachusetts serves as a public school district. The county role in public welfare and public health has been very strong in other sections of the country, but Barnstable is the only Massachusetts county having a county health department to serve the needs of its widely scattered population. Planning, zoning, law enforcement, public transportation, rubbish disposal, sewerage treatment, and other regional functions have not yet been exercised by Massachusetts counties. The functions of counties in Massachusetts include: ( 1 ) the administration of county courts; ( 2 ) the penal system; ( 3 ) the supervision of certain health facilities; ( 4 ) highway activities; ( 5 ) agriculture; ( 6 ) maintenance of registries of deeds; ( 7 ) miscellaneous services provided by individual counties after authorization by the legislature; ( 8 ) the assessment and collection of certain taxes and fees.

326

INTERGOVERNMENTAL RELATIONS

County Courts The operation of the courts has always been the most important function of Massachusetts counties. Although all the courts have sittings in each of the fourteen counties, they are state courts, supervised on a statewide basis by the chief justice of the Supreme Judicial Court. Although judges' salaries for all types of courts are paid by the state, other expenses, including the provision and maintenance of courthouses, are shared by state and county governments. County officials involved in the court system include the district attorney, who prosecutes all criminal and civil cases that involve the state and come before the Superior Court. The clerk of courts acts as clerk of the Superior Court and supervises all administrative work connected with the Superior Court. The register of probate and insolvency handles the detailed work concerning the probate court. All wills, divorce actions, and petitions that come before the court are first cleared through him. Probate courts also consider bankruptcy cases which do not come within the jurisdiction of the federal courts, and the register of probate maintains these records. The Penal System County commissioners in each county except Dukes county are required to provide a house of correction. All of these institutions are combined jails and houses of correction, except in Suffolk and Middlesex counties, where separate institutions are maintained. Various statutes passed by the legislature set up rules for the operation, maintenance, and supervision of houses of correction. Prisoners in the jails are individuals awaiting trial and in temporary custody of the Superior and district courts in the county. Houses of correction hold convicted prisoners serving sentences of not more than two and a half years. The sheriff in each county has charge of both jails and houses of correction. He appoints deputies, jailers, officers, and other employees who are accountable to him. Their salaries are paid by the counties and their jobs are not covered by civil service. The state Commissioner of Correction and the county commissioners, as well as the sheriffs, have responsibility of varying kinds and degrees for the county jails and houses of correction, a situation which tends to obscure responsibility for the proper management of these institutions. Suggestions for reorganization of the county penal system have been made over the years, but no major program has been authorized by the legislature. Some proponents of reform have advocated the transfer of all county penal institutions to the state Department of Correction. Others feel that the existing system should be placed under the general direction of the

COUNTY GOVERNMENT

327

Commissioner of the Department of Correction. Proponents of such changes cite the need for modern rehabilitation programs, which are difficult to provide in the present system. Existing houses of correction vary in size and in adaptability to modern penological methods, and each operates under individual rules and regulations. Essex is the only county maintaining an industrial farm. Inmates are supplied by the sheriff on request of the county commissioners, who also control the farm. However, sheriffs are responsible for all county prisoners within their counties, including those at the industrial farm. The farm is outside the usual provisions of the county budget law, and thus not subject to financial control by the legislature. Essex, Hampden, and Middlesex counties maintain county training schools to which all counties in Massachusetts may send "habitual truants, absentees, and school offenders" whom the school authorities find unmanageable. Parents of these children pay support if they are able; otherwise the town from which the child comes pays partial support and the county pays the balance. Criticism of the county training schools centers about the following arguments: ( 1 ) the schools do not operate at anything close to capacity and have very high per capita costs; ( 2 ) the relatively low salary scale for teachers does not attract capable and experienced teachers; ( 3 ) the total absence of a probation system makes the supervision of sixteen-year-olds released from the schools nearly impossible; ( 4 ) school offenders should be cared for within the public school systems of individual towns, and children who are true delinquents or mental cases should be sent to the proper state institutions. Health Facilities Until 1960 counties were required to provide tuberculosis sanatoria. In 1960 this responsibility was transferred by the legislature to the state Department of Public Health, which is authorized to operate sanatoria and contract with existing hospitals for the care of tubercular patients. The state generally contracted with those hospitals which could operate near capacity with reasonable economy, freeing some of the county sanatoria for conversion to chronic disease hospitals. In 1969 there were two sanatoria serving as contract hospitals for the care of tuberculosis patients at Middlesex and Norfolk. Chronic disease hospitals at that time included Plymouth, Bristol, Hampshire, Worcester, and Barnstable. Barnstable was the only county to operate a general hospital. Budgets for county hospitals are submitted to the legislature separately from the rest of the county budget. Hospital charges for patient care are paid by the patient if he can afford it, or by the town in which the patient resides. Hospital operating deficits are

328

INTERGOVERNMENTAL RELATIONS

assessed on all cities and towns on the basis of their valuations. The county commissioners appoint the trustees for the chronic disease hospitals except for Bristol, the trustees of which are appointed by the governor. All counties participate in the medical examiner system. Examiners and associate examiners are appointed by the governor for terms of seven years. They inquire into the causes of violent and unnatural deaths, and deaths in which the cause is not easily discernible. The General Laws state that medical examiners should be "discreet" men "learned in the science of medicine." Fees for their services are paid by the counties. At least one medical examiner is appointed for each of the seventy-two examiner districts in the state. H i g h w a y Activities

Although the actual construction and maintenance of highways is a function of the state or the cities and towns, the counties are also involved in highway activities. They help finance the construction and maintenance of secondary roads on a cooperative basis with the municipalities and the state Department of Public Works. The county share of this highway program is assessed directly on the cities and towns and raised by them through the local property tax. The county commissioners also act as a quasi-judicial body with power to take land for public ways. Many proposals have been made over the years to eliminate or modify the county highway responsibilities. It has been suggested that the county commissioners' highway powers could be reallocated to the state and cities and towns, with general supervision exercised by the state Department of Public Works. It has also been suggested that the county share of highway construction and maintenance costs should be absorbed by the state highway fund, which is composed of receipts from road users. Agriculture

There are three county agricultural schools which provide agricultural training for children fourteen years and older. They are located in Bristol, Essex, and Norfolk counties. The management of each school is vested in a board of seven trustees, three of whom are the county commissioners, and the other four appointees of the governor. Each school has a director appointed by the trustees with the approval of the state Commissioner of Education. The operation of these schools is also subject to the approval of the state Commissioner of Education. The schools are financed by county, state, federal, and private funds. Each Massachusetts county, except Suffolk and Nantuôket, is required to provide an agricultural extension service. This is usually organized in three areas: agriculture, home demonstration, and 4-H clubs. Some federal assistance is provided for the extension programs. In Bristol, Essex, and Norfolk counties the extension service is managed by the trustees of the county

COUNTY GOVERNMENT

329

agricultural schools. In every other county, management is in the hands of a nine-man board of trustees appointed by the county commissioners. In addition to managing the extension service, the trustees for county aid to agriculture are empowered to provide any assistance to agriculture that may be authorized by the federal, state, or local governments. Registries of Deeds The maintenance of offices of record is an important county function, carried on by the clerk of courts, the register of probate, and the register of deeds. Many people encounter this county government function when buying or selling property, as all land transactions must be recorded with the proper registry of deeds. There are twenty-one registries of deeds in Massachusetts. Five counties have more than one: Berkshire and Bristol each have three; and Essex, Middlesex, and Worcester each have two. The multiple-district plan was instituted because of the transportation difficulties of the nineteenth century. Now the location and need for more than one registry in a county are being questioned. County Finances In twelve of the fourteen counties the legislature is the appropriating authority for county budgets. In Nantucket and Suffolk counties this is the responsibility of municipal authorities. The Boston city council provides this service for Suffolk county, and the town meeting of Nantucket makes appropriations for that county. The county commissioners in each of the other counties submit the proposed budget of county expenditures to the Director of Accounts of the state Department of Corporations and Taxation. He then submits the budget to the legislature for consideration. The county hospital budget is considered separately from other county budget requests. After approval by the state legislature, the taxes necessary to support county budgets are raised by the cities and towns through the local property tax. The assessment for each of the communities is levied by the county commissioners on the basis of the latest state-equalized property valuations. All fees collected by any county department must be submitted to the county treasurer with the exception of fees collected by deputy sheriffs for serving legal papers. The deputies may keep their fees. This situation has been a subject of some criticism, and several proposals for change have been made. County expenses are audited annually by the state Director of Accounts. An increase in county expenditures, attributable largely to price rises in the commodities needed by county facilities, points up one of the criticisms often leveled at the purchasing practices of the Massachusetts counties.

330

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