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Although the Pilgrims sailed to the New World in the quest for religious freedom, these explorers maintained a respect, and need, for English common law. Three years after their arrival in Plymouth, the Pilgrims codified the colony’s laws. On December 17, 1623, colony officials decreed “that all criminal facts, and also matters of trespasse and debts betweene man and man should be tried by the verdict of twelve honest men to be impanelled by authority in forme of a jury upon their oath.”
In 1630, the first jury trial in the American Colonies was held in Plymouth when John Billington was accused of murdering fellow Mayflower colonist John Newcomin. The jury found the defendant guilty of “willful murder by plain and notorious evidence,” and he was executed by hanging. Governor John Bradford later wrote that the jury had taken “all possible pains in the trial.” During the same year, the Puritans joined the Pilgrims in what was to become Massachusetts, when they settled in Boston. As the Massachusetts Bay Colony grew, so did its governing body, the General Court. The court possessed legislative and judicial powers.
In 1641, lawyer-clergyman Nathaniel Ward of Ipswich drew up the Body of Liberties, setting the basis of colonial law in Massachusetts. Article 29 of the Body of Liberties reads:
In all actions at law it shall be the libertie of the plaintiff and defendant by mutual consent to choose whether they will be tryed by the Bensh or a Jurie, unless it be where the law upon just reason hath otherwise determined. The like libertie shall be granted to all persons in Criminal cases.
Under the Liberties “free men” could serve on two juries in a year. Jurors were picked “by the freemen of the Town where they dwell.”
From the beginning, even in the 17th century, failure to perform juror service was punished. Under Colonial law, starting in 1647, “if such person shall refuse to serve in, or take upon him any such Office, being legally chosen thereunto, he shall pay for such refusall, such fine, as the Town shall impose not exceeding Twenty shillings for one Offence.”
Today, failure to complete jury service is a criminal offense carrying a fine of up to $2,000. Mass. Gen. Laws c.234A, §42 forms the basis of the Office of Jury Commissioner’s (OJC) Delinquent Juror Prosecution Program (DJPP), which was created in response to the Massachusetts Supreme Judicial Court’s (SJC) decision in Commonwealth v. Tolentino, 422 Mass. 515 (1996).
By the end of the 18th century, Massachusetts had become a state, and part of the United States. In the Declaration of Independence of 1776, Thomas Jefferson specifically cited the importance of the jury system in the Declaration’s litany of grievances against King George III and the English government, “For depriving us, in many cases, of the benefits of Trial by Jury.”
Four years later, the Massachusetts Constitution was written by John Adams, who had worked with Jefferson on the Declaration. Written in 1780, the Massachusetts Constitution is the oldest constitution in the world that has been in continuous operation since its ratification. The right to a trial by jury was guaranteed in criminal and civil cases in the state constitution. Part 1, Article XII of the Constitution of the Commonwealth of Massachusetts says in part:
And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.
Civil jury trials were cited as well three articles later, at Part 1, Article XV:
In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury.
Seven years after the ratification of the Massachusetts constitution, delegates from across the country gathered in Philadelphia to create a national constitution in 1787. Article III, Section 2 of the Constitution reads:
The Trial of all Crimes, except in cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Americans opposed passage of the Constitution because it failed to address several important issues, notably the right to a trial by jury in civil cases. When the Bill of Rights was added to the Constitution, the right to trial by jury for both criminal and civil cases was included. The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Jury trials in civil cases were guaranteed under the Seventh Amendment of the U.S. Constitution:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Thus, with the ratification of the United States Constitution in 1788 and the Bill of Rights in 1791, the rights of the people of the new United States of America to a trial by jury in both civil and criminal trials were secured.
Although it was the first colony to establish slavery, Massachusetts was also the first to abolish it in 1783, in the aftermath of the Massachusetts Supreme Judicial Court’s ruling in the Quock Walker case. Massachusetts was also the first to impanel African-Americans on a jury, in 1860, on the eve of the Civil War. Francis Clough, 45, a freeman born in Worcester, and William Jenkins, a former slave, became the first African-American jurors in Massachusetts when they served in the Worcester Superior Court. Abolitionist William Lloyd Garrison wrote with approval in his Liberator in the June 1860 issue:
The fact that colored citizens of Worcester (Francis U. Clough and William H. Jenkins) had been recently drawn as jurymen – the first such instances in the history of Massachusetts – was appropriately commented upon and hailed as an encouraging sign of the times.
Although Massachusetts was on the forefront in impaneling African-American jurors, the state lagged far behind in giving women the right to serve on juries. Women would not be given the right to perform jury service in Massachusetts until 1950, almost 100 years after Clough and Jenkins were impaneled in Worcester.
Despite the passage of the Nineteenth Amendment in 1920, giving women the right to vote, Massachusetts women faced formidable opposition in their efforts to gain the right to sit on juries. Indeed, the specter of women jurors was cited by opponents of the women’s suffrage movement, who warned that giving women the vote "MEANS WOMEN ON JURIES." Jury duty "for your wife or your daughter," the Massachusetts Anti-Suffrage Committee stated in 1915, "is almost unthinkable." It was felt that women were too delicate, and too much needed in the home, to be subjected to jury service.
When the first two Massachusetts women were seated as jurors in 1951, there were only nine states left in the country that didn't permit women jurors. Even so, Massachusetts allowed women to seek an exemption based on their gender, and was the only state to allow a woman to be excused from certain cases if the testimony or deliberations might prove embarrassing to her.
For much of the 20th century, municipal officials were required by law to select prospective jurors of “good moral character [and] sound judgment” each year, but there were so many exemptions that for the most part, jury pools weren’t truly representative of the local population. Many professionals, public employees, and others were excluded. Juries were generally made up of people from a limited demographic group.
In 1980, an appeal to the Massachusetts Supreme Judicial Court (SJC) provided the impetus for a major change in jury operations. In Commonwealth v. Bastarache, 382 Mass. 86 (1980), the defendant, who was convicted by a jury of manslaughter, claimed younger members of Franklin County were not represented in the jury pool. The SJC agreed that persons from age 18-34 were underrepresented (although not by design), and that the centuries-old “key man” system, which involved choices by community representatives in compiling jury lists, held “the possibility of abuse.”
The Court sought to encourage a more random process for the creation of jury lists, and noted that the Legislature might consider expanding the pilot of the One Day or One Trial jury system that was at that time limited to Middlesex County. In response, the current jury statute, Massachusetts General Law chapter 234A, was enacted in 1982.
In 1988, when the last Massachusetts counties were converted to the “new” system, Massachusetts became the first state in the nation to adopt the One Day or One Trial jury system statewide. Today, “One Day or One Trial” is the national model.
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