Opinion of Justices

• Decision Date: 07 March 1877
• Parties: Opinion of the Justices to the House of Representatives
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 594

Opinion of the Justices to the House of Representatives

Supreme Court of Massachusetts

March 7, 1877

OPINION

The following order was passed by the House of Representatives on February 26, 1877, and on February 28 transmitted by the Speaker to the Justices of the Supreme Judicial Court, who on March 7 returned the answer which is subjoined.

Ordered that the opinion of the Justices of the Supreme Judicial Court be required upon the following questions of law, viz.:

1. What is the meaning of the word "inhabitant," as used in Article 21 of the amendments to the Constitution of Massachusetts, in the provisions relating to the qualifications of representatives?

2. Is a person, otherwise qualified, eligible as a member of this House, who, having been an alien, has been naturalized within one year next preceding his election?

3. Must an alien be naturalized before he can become eligible as a member of this House?

The Justices of the Supreme Judicial Court, having considered the questions proposed by the Honorable House of Representatives respectfully submit the following opinion:

The general principles and the rules of construction, which must guide us in answering these questions, are clearly set forth in an opinion submitted to the Honorable House in 1811 by Chief Justice Parsons and Justices Sewall and Parker (each afterwards Chief Justice), printed in full as a supplement to the seventh volume of the Massachusetts Reports, and in the Reports of Controverted Elections, published in pursuance of a Resolve of the General Court in 1852, and from which it is sufficient to quote a few sentences.

"We assume, as an unquestionable principle of sound national policy in this state, that, as the supreme power rests wholly in the citizens, so the exercise of it, or of any branch of it, ought not to be delegated by any but citizens, and only to citizens. It is therefore to be presumed that the people in making the Constitution, intended that the supreme power of legislation should not be delegated, but by citizens. And if the people intended to impart a portion of their political rights to aliens, this intention ought not to be collected from general words, which do not necessarily imply it, but from clear and manifest expressions, which are not to be misunderstood.

"But the words inhabitants' or residents' may comprehend aliens, or they may be restrained to such inhabitants or residents who are citizens, according to the subject matter to which they are applied. The latter construction comports with the general design of the Constitution. There the words people' and citizens' are synonymous. The people are declared to make the Constitution for themselves and their posterity. And the representation in the General Court is a representation of the citizens."

Such were the reasons upon which those eminent judges declared it to be their opinion that the authority given by the Constitution, as originally adopted, to "inhabitants of each town" to vote for senators, and to persons "resident in any particular town" to vote for representatives, was restrained to such inhabitants and residents as were citizens; and that aliens, whether their polls were or were not ratable, were not qualified voters for senators or representatives, and could not be qualified to hold either of those offices.

The position that the electors and the elected alike must be citizens of the Commonwealth is supported by several articles of the Declaration of Rights. " The people of this Commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign and independent State; and do and forever hereafter shall exercise and enjoy every power, jurisdiction and right, which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled." "The people alone have an incontestable, unalienable and indefeasible right to institute government; and to reform, alter or totally change the same, when their protection, safety, prosperity and happiness require it." "All the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments." "No part of the property of any individual can with justice be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this Commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent." So, that part of the Constitution, which relates to the House of Representatives, begins by declaring, "There shall be in the Legislature of this Commonwealth a representation of the people."

The use of the word "inhabitants" in the sense of "citizens" is further illustrated by the following Part the First of the Constitution is entitled "A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts." Part the Second, entitled "The Frame of Government," opens with these words: "The people, inhabiting the territory formerly called the Province of Massachusetts Bay, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign and independent body politic or state, by the name of the Commonwealth of Massachusetts." Power is conferred upon the Legislature to erect and constitute courts, to be held in the name of the Commonwealth, for the trial and determination of all causes between or concerning "persons...