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 DAILY ADVERTISER 
 
 TO BE TAKEN FROM 
 
 46 CONGRESS STREET,
 
 

 
 DISCUSSIONS 
 
 ON 
 
 THE CONSTITUTION 
 
 PROPOSED TO THE 
 
 PEOPLE OF MASSACHUSETTS 
 
 BY 
 
 THE CONVENTION OF 1853. 
 
 BOSTON: 
 
 LITTLE, BROWN, AND COMPANY, 
 
 112 WASHINGTON STBEET. 
 1854.
 
 CAMBRIDGE: 
 MBTCALP AND COMPANY, PRIMERS TO THE UNIVERSITY.
 
 IT has been deemed desirable to preserve, in addition to the 
 Debates in the Convention of 1853, some of the Discussions 
 that followed the presentation by that body of the Consti- 
 tution which they proposed to the people of Massachusetts. 
 These Discussions are here printed, in the order in which 
 they were originally published, and as they have been found 
 in the perishable records of the period that produced them, 
 . with the exception of Governor Morton's Address-, which has 
 been revised by himself. They are as follows: 
 
 1. The Letters of Phocion, by G. T. Curtis, . . .1-80 
 
 2. The Letters of Silas Standfast, by G. S. Hillard, 81 - 172 
 
 3. The Address of Samuel Hoar, at Fitchburg, . 173-183 
 
 4. The Address of Marcus Morton, at Taunton, . 185 - 231 
 
 5. The Address of C. F. Adams, at Quincy, . . 233-257 
 
 6. The " Remarks " of J. G. Palfrey, 259-306 
 
 All of them have heretofore been published, with the names 
 of their respective authors, or are now avowed by them. 
 Others would have been added, but the volume is already 
 larger than it was intended to be. 
 
 As it has been published chiefly for free distribution, any 
 person into whose hands the present copy may fall, and who 
 can make no more suitable use of it, is requested to place it 
 in some public library near to his own residence. 
 
 January 12, 1854.
 
 LETTERS OF PHOCION, 
 
 GEORGE TICKNOR CURTIS. 
 
 FIBST PRINTED IN THE BOSTON DAILY ADVERTISER AND 
 COURIER, AUGUST NOVEMBER, 1853.
 
 LETTERS 
 
 TO 
 
 THE PEOPLE OF MASSACHUSETTS 
 
 THE PROPOSED CONSTITUTION. 
 
 No. I. 
 
 '*! have a great dislike to every thing that tends to debase the spirit of the peo- 
 ple." DR. FRANKLIN, in the Federal Convention of 1787. 
 
 HAVING read, as you are called upon to read, the Address 
 of the late Constitutional Convention, and the project of a 
 Constitution which it urges you to adopt, I propose to examine 
 that document, and the various changes in your frame of gov- 
 ernment which it seeks to effect. 
 
 It is not to be doubted, that you are called upon to pass 
 upon the most momentous question that can be submitted to 
 a free people ; and any citizen of the State may well exert 
 himself, according to the measure of his abilities and knowl- 
 edge, to aid you in coming to a safe and just conclusion. My 
 name could add nothing to the intrinsic weight of the opinions 
 which I shall express, and it ought not to detract from the 
 consideration to which, of themselves, they are fairly entitled. 
 No effort will be made to conceal it, for it is not my custom 
 to avoid the responsibility attaching to any opinions I may 
 express. But you will allow me to premise, that I have no 
 personal interest in this question, beyond that of every inhab- 
 itant of the Commonwealth. 
 
 To me, so far as the prospect of my ever filling such sta-
 
 4 ADDRESS OF THE CONVENTION. 
 
 tions is concerned, it is a matter of personal indifference, 
 whether the various offices which this proposed Constitution 
 undertakes to deal with are filled by the Executive or by the 
 people, or what may be the tenure by which they shall be 
 held. 
 
 I have never filled any offices in the government of the 
 State, beyond those of a Justice of the Peace and a member 
 of the lower branch of the Legislature ; and by the blessing 
 of Heaven, I sincerely hope and believe, that the former is the 
 highest dignity which I shall ever hold hereafter. My interest, 
 therefore, in the great question which is to agitate the Com- 
 monwealth during the coming autumn, is not more or less 
 than yours ; namely, to secure, enjoy, and perpetuate to my 
 children the best government that republican institutions will 
 admit. I firmly believe that those institutions are both the- 
 oretically the best that human wisdom can devise, and prac- 
 tically necessary in our American societies ; and some study 
 of their history has enabled me, I hope, to see the reasons on 
 which this belief should depend. 
 
 Whether the great principles which ought to lie at the 
 foundation of such institutions are or are not satisfied, in the 
 changes which you are now asked to make in your Constitu- 
 tion, will be the principal inquiry to which I shall ask your 
 attention. 
 
 The address of the Convention is marked by a plausible 
 and sententious sophistry, which will be likely to impose on 
 none but shallow minds. It seems to have been framed in 
 the belief, that the people of Massachusetts can be deluded by 
 words and phrases. It is as unfair, also, as it is sophistical. 
 It parades, as the judgments of the Convention, results that 
 were reached only by majorities, and oftentimes by majorities 
 largely composed of those who deliberately sacrificed one 
 opinion for the sake of securing votes to another. 
 
 It keeps out of sight, upon many most important and in- 
 deed vital subjects, the fact, that a very large minority of the 
 Convention protested against the results arrived at, as a viola- 
 tion of the natural and the civil rights of those whom they 
 represented, and suppresses the fact, that the majority marched 
 to their conclusion in utter disregard of a principle which lies
 
 ADDRESS OF THE CONVENTION. 5 
 
 at the foundation of representative government. It declares, 
 for instance, that " a majority of more than one hundred mem- 
 bers determined to preserve the system of town representa- 
 tion " ; but it wholly conceals the fact, that the mode in which 
 the majority determined to preserve that system was earnest- 
 ly and bitterly complained of, as a violation of the political 
 equality of every citizen with every other citizen. What then 
 is to be thought, and what is to be said, of a document, which, 
 purporting to speak in the name of a public deliberative body, 
 and officially signed by its officers, withholds from the people 
 of the Commonwealth the important and necessary informa- 
 tion, that a large portion of their delegates contended and 
 complained, that the civil rights of their constituents were dis- 
 regarded and trampled upon by the very majority that is thus 
 paraded in justification of the measure proposed ? 
 
 Did the majority of the committee, by whom this address 
 was prepared, and did the officers of the Convention, by whom 
 it was signed, find themselves unable to lay aside the partisan 
 character which they had worn throughout the proceedings, 
 when they came to address the whole people of the State in 
 the name of the whole Convention ? Did they suppose that 
 it was either common fairness or common honesty, to lay be- 
 fore the people of the Commonwealth the views and opinions 
 of the majority, and to omit all mention of the fact, that other 
 members of their body protested against those views and 
 opinions, as a violation of the principles on which all political 
 equality in a free government depends ? They may answer 
 this question if they can. 
 
 It has always been supposed to be of the essence of repub- 
 lican governments, that the rights of minorities should be pre- 
 served ; and it has been the peculiar boast of such govern- 
 ments, that they and they alone can preserve and protect the 
 political equality of all the citizens. In monarchical and aris- 
 tocratic governments this is impossible, and does not profess 
 to be accomplished ; for such governments are founded upon 
 the negation of absolute and inherent rights in the whole peo- 
 ple of an equal character, and upon the idea, that whatever 
 rights are at any time found in their possession are conces- 
 sions from those who are above them. But it has been the 
 1*
 
 6 THE CONVENTION UNNECESSARY. 
 
 peculiar merit of our free, republican, and representative gov- 
 ernments, that they preserve equal rights to all, because every 
 individual forms a part of the source whence all political 
 power proceeds ; that while the majority are to govern, they 
 are so to govern, as to give every one of the minority equal 
 facilities and equal opportunity with every other citizen to be- 
 come in his turn one of the majority, whose will is to consti- 
 tute for the time being the law of the land. It was reserved 
 for the Solons of our late Convention, to discover that this 
 theory of republican governments is of no practical conse- 
 quence or value ; that minorities may be oppressed, and kept 
 in the position of minorities, under republican forms, as well 
 as under a monarchy, an oligarchy, or an absolute despotism ; 
 and that representative institutions may be so contrived, as to 
 deprive large portions of the people of the power of becoming 
 a part of the majority, that is to give law to the community. 
 Whether this discovery was worth the great expenditure it 
 has cost, whether it will not be found, should it ever go into 
 practical operation, to be a great injury and a serious blow to 
 the cause of constitutional republican liberty, time will show. 
 
 But I will not anticipate the topics which you will be called 
 upon to consider. 
 
 The Address of the Convention begins with the somewhat 
 prominent assertion, that " the necessity for the Convention 
 was great." Let the truth of this statement be tried by the 
 facts. The pay-roll of the Convention amounts to one hun- 
 dred and fourteen thousand ninety -two dollars. Besides this 
 great sum, there is due to certain printers, on a wasteful con- 
 tract for reporting and printing the debates, another large sum, 
 the amount of which is not publicly known, if it has been even 
 ascertained, but which, it is estimated, by good judges, will 
 be found to exceed thirty thousand dollars. The other inci- 
 dental expenses are not known, but it is highly probable that 
 the whole cost of the Convention will not fall short of one hun- 
 dred and fifty thousand dollars. The political party or par- 
 ties who originated the project of this Convention will, unless 
 I greatly mistake the final result of their labors, be the first 
 set of men, in the history of Massachusetts, to cause such an 
 expenditure of the public money, without leaving any thing to
 
 THE CONVENTION UNNECESSARY. 7 
 
 show for it in the institutions of the Commonwealth. The 
 necessity must have been great indeed, to justify such an ex- 
 penditure, at a time when the Commonwealth has not a 
 dollar of surplus in her treasury, and must lay a tax upon her 
 people in order to meet the current expenses of government, 
 and to keep the credit of the State untouched in the money- 
 markets of the world. But what was the necessity ? In the 
 year 1780, before the close of the Revolutionary war, the peo- 
 ple of Massachusetts formed a Constitution, which has been 
 as near an approach to a perfect government as the world has 
 seen. Forty years afterwards it required and received some 
 revision ; but all its great essential features, all the wise and 
 careful provisions, which the men of the Revolutionary age, 
 with a wonderful foresight and an extraordinary capacity for 
 political construction, engrafted into it, remained untouched. 
 From the year 1820 to the present hour, no real grievance has 
 existed, and no complaint has been made of the working of 
 any of the institutions of the State, with the single exception, 
 that the basis of the House of Representatives has been found 
 practically inconvenient, in consequence of the corporate right 
 of representation reserved to the cities and towns. 
 
 Granting, either for the sake of argument, or, as I am ready 
 to do, without reservation, that the basis of representation 
 needed to be reformed, it remains for those who allege the ne- 
 cessity for the late Convention, as a justification for its doings 
 and its expenses, to show, in the first place, that the represen- 
 tation could not have been amended without a Convention ; 
 and in the second place, that a reform of the representation 
 necessarily involved and required a radical change in the 
 structure and basis of every other department of the govern- 
 ment. That a public necessity for a more equal and satisfac- 
 tory adjustment of the system of representation should be put 
 forth as a plea to justify a radical change in the tenure of the 
 judiciary; a restriction of the appointing power of the Gov- 
 ernor, so as to strip the office of almost all the trusts which 
 the wisdom of our ancestors had confided to it ; an abolition 
 of all tax qualification for voters, and an infliction of " sealed 
 envelopes " as a constitutional principle for the regulation of 
 the ballot; together with all the other innovations which this
 
 8 A PARTY PROJECT. 
 
 Convention has devised, is satisfactory proof, that the men 
 who originated this scheme had other objects to accomplish, 
 besides meeting the want of a better basis for the House of 
 Representatives, which was all that the people ever contem- 
 plated or designed to touch. And, even with regard to that 
 object, every citizen of the Commonwealth knows, that the 
 existing Constitution contains a provision for its own amend- 
 ment, fully sufficient for the occasion, and wisely designed to 
 accomplish the process of amendment in centra-distinction to 
 revolution. That provision is, that any amendment which 
 shall be passed by two successive Legislatures, receiving a 
 majority of votes in the Senate, and the votes of two thirds 
 of the House, if afterwards ratified by a majority of the peo- 
 ple, shall become a part of the Constitution. The object of 
 this provision was twofold. First, to avoid the excitement 
 and expense of extraordinary deliberative assemblies, dealing 
 with the fundamental law. Secondly, to secure the operation 
 of a principle, which has always formed a cardinal doctrine of 
 our American governments since their establishment; namely, 
 that it is both expedient and necessary, in order to amend 
 a Constitution, that the assent of the existing government 
 should be given to the proposed change. It is the absence of 
 this assent, which makes the distinction between amendment 
 and revolution; and in nothing did the framers of the Consti- 
 tution of the United States show more wisdom, than they did 
 in making every step in their progress from the Confederation 
 to the new Constitution subject to the sanction of the old 
 Congress. 
 
 What good reason, then, I beg to ask, can be alleged, why 
 the Legislature should not have been applied to, to prepare a 
 suitable system of representation, to be laid before the people 
 for their adoption ? Such a course of proceeding would not 
 have cost the Commonwealth a dollar ; and there is but one 
 reason, if they were to speak the truth, that can be given by 
 the leaders of the Coalition party, why this course was not 
 adopted, and that reason is, that the Legislature would not 
 have framed a system that would have suited their party pur- 
 poses. No such scheme as that which disgraces the proposed 
 Constitution could ever have proceeded from two successive
 
 A PARTV PROJECT. 9 
 
 Legislatures of Massachusetts ; and the fact, that these lead- 
 ers avoided the course prescribed in the existing Constitution, 
 and the scheme which they have concocted in a Convention, 
 prove that the real necessity of the case was a necessity for 
 the means of attaining political power for themselves and 
 their followers. 
 
 Unfortunate, beyond the ordinary measure of misfortune, is 
 that community which contains too many of those patriotic 
 persons, who are ambitious of serving the public, and who 
 cannot reach the object of their ambition, without pulling 
 down the great landmarks which society has erected for its 
 security and defence. Unless I am greatly mistaken, the 
 Commonwealth contains at the present day an unusually large 
 number of such persons ; of men, I mean, whose business is 
 politics ; and among them are some who seem to have no 
 other profession or employment. Certainly, an ambition to 
 serve one's country in public office may be a laudable ambi- 
 tion ; and I am not prepared to say, if an individual has a 
 fancy for this mode of satisfying the wants of his existence, 
 that a livelihood gained in public offices may not be respect- 
 ably and honorably gained. But the characters and designs 
 of men must be judged of by their acts, and political parties 
 are only aggregations of individual men. Whenever it is ap- 
 parent, that a set of men cannot attain political power in a 
 State by pursuing the ordinary roads of ambition, and by the 
 conduct which usually gains for individuals the confidence of 
 the public; when their path to power lies through the ruins 
 of ancient institutions, and over the fragments of great princi- 
 ples of equality, security, and justice ; when, in fine, they 
 must remodel every thing, and are found so remodelling it as 
 to secure their own advantage at the expense of the best inter- 
 ests of society ; then the conclusion is irresistible, that the 
 " necessity " which impels them begins and ends in the great 
 law of self-interest and self-aggrandizement. You will find 
 that there is no other supposition, upon which you can account 
 for the monstrous scheme of injustice and radicalism, that has 
 been laid before you for a Constitution. 
 
 PHOCION.
 
 10 ITS OBJECTS WERE PARTISAN. 
 
 No. II. 
 
 IN the paper which I had the honor of submitting to you, 
 on Monday last, I charged, that the leaders of the Coalition 
 party, by whom the proposed Constitution has been formed, 
 had shaped its provisions with the unfair and selfish purpose 
 of accomplishing their own party objects. I now invite your 
 attention to some more particular proofs of this charge. Per- 
 haps there is no more convincing proof of it, apart from the 
 character and operation of the specific changes which they 
 may desire you to adopt, than is to be found in the manner in 
 which they require you to vote upon the results of their labors. 
 They have laid before you seven or eight distinct propositions. 
 In the first of these propositions, upon which, as if it were 
 one object, you must deposit your ballots, yes or no, there are 
 embraced a variety of distinct changes, in regard to which it 
 is impossible for a majority of the people to entertain the 
 same opinion for or against them all, and concerning which 
 very few individuals can be found, who would vote in the 
 same way upon each of them, from any but party motives. 
 These subjects are so widely different in their character, and 
 the changes proposed are subject to objections of such very 
 different degrees of force, that it is impossible to assign any 
 fair motive for placing them before you collectively in one 
 proposition. Consider, for a moment, that, when the ballots 
 of a whole people are cast upon any day of a general election, 
 even for a single officer, how many voters are obliged to come 
 to the polls and deposit the single ballot, in which resides all 
 the power they can exercise over the subject, with many com- 
 promises of opinion and feeling, and with many doubts as to 
 the correctness of their final decision. Multiply this embar- 
 rassment many times, and add to it the fact that the subject, 
 on which that single ballot is to be cast, concerns the whole 
 structure of the frame of government, and the principles on 
 which it is to rest, and you can form some idea of the extreme 
 impropriety of confining a voter to a single ballot, upon a 
 proposition which embraces alike questions of moral and
 
 ITS OBJECTS WERE PARTISAN. 
 
 11 
 
 political principle, questions of mere expediency, and 
 questions with which neither principle nor expediency has 
 any thing to do. A deliberate and purposed arrangement for 
 thus controlling the judgments of a people, and forcing them 
 into a position where they cannot express their judgments 
 equally upon all the subjects involved, can be characterized by 
 no milder term than by one which describes it as a fraud upon 
 their rights. The case is wholly different, in point of principle, 
 and the situation of the people is wholly different, from the 
 case of the first formation and acceptance of a free constitution. 
 On such an occasion, from the very nature of the case, the 
 whole instrument might have been voted upon, although it 
 was not in Massachusetts, as one frame of government, for 
 acceptance or rejection. There is no previous Constitution to 
 be altered or amended ; what is presented might be acted upon 
 as a whole, and if accepted, society is organized according to 
 its provisions ; if rejected, it must begin anew, and make a 
 fresh attempt at organization. Hence it is, that in our previ- 
 ous history, both State and national, the language has been 
 held and the principle has been acted upon with perfect pro- 
 priety, that the particular Constitution offered might not be the 
 best that could possibly be devised, or the one that would suit 
 all men alike; but, inasmuch as something must be done, and 
 an entire frame of government must be adopted, to save soci- 
 ety from anarchy, individual objections to particular provisions 
 would be sacrificed to the general good. But when a state 
 has long possessed a frame of government, devised by the in- 
 telligence and established by the will of its people, when 
 the question is, not whether the government shall continue to 
 be republican, or be moulded to some other form, but simply 
 whether the principles by which some of its departments are 
 regulated shall be changed, there is no such necessity for re- 
 quiring a vote upon the collective changes proposed, which is 
 to adopt the whole, or reject the whole, as one proposition. 
 There is not only no necessity for it, but it is impossible that 
 it should result in a fair and free expression of the will of 
 society upon the various and dissimilar subjects involved. 
 This is too plain to require particular illustration. You will 
 feel it to be true when you come to the ballot-box next Novem-
 
 12 TRICKS OF PARTY. 
 
 her, and undertate to deposit your votes upon this first propo- 
 sition of the Convention. 
 
 And it appears to me perfectly obvious, that the framers of 
 these propositions were conscious that their schemes required 
 to be carried by no inconsiderable exercise of political legerde- 
 main. They have put into their first proposition two radical 
 and sweeping changes in the institutions of the State, in both 
 of which questions of the highest principle are involved. I 
 allude, of course, to the new basis which they have devised 
 for the House of Representatives, (which, I shall have occasion 
 to show hereafter, involves a violation of justice and natural 
 right,) and to the proposed change in the tenor of the judi- 
 ciary from an office during good behavior to an office for ten 
 years. They have also placed in the same proposition a 
 change in the mode of electing the Senate, which does not 
 seem to involve any question of principle; namely, requiring 
 the Senators to be elected for districts instead of counties. 
 
 These three changes, namely, the representative system, 
 the Judiciary, and the Senate, required evidently, in the judg- 
 ment of the framers of the proposition, all the make-weights 
 that could be thrown into the scale. If the bitter pills of the 
 two first could be sufficiently gilded, the inoffensiveness of the 
 third, in point of principle, would be at least a negative virtue. 
 Men who were to be brought to the ballot-box, and there 
 made to impose upon their fellow-citizens such a system of 
 representation as is here devised, and to pull down the Judi- 
 ciary of Massachusetts from the tenure on which it has rested 
 for two hundred years, must have something to attract and 
 distract their attention, to tickle their vanity, and to flatter 
 their love of power. Accordingly, you are asked in this same 
 proposition to do some things which are innocent but ridicu- 
 lous, and some things which are surely inexpedient and un- 
 wise ; but almost all of which address themselves to what 
 politicians are in the habit of believing to be the weak side of 
 the people. You are asked, for instance, to abolish the prop- 
 erty qualification of Governor and Lieutenant-Governor, and 
 to dock off from the one the harmless title of " His Excellen- 
 cy " and from the other the equally harmless addition of " His 
 Honor." You are asked to elect the members of the Council,
 
 TRICKS OF PARTY. 13 
 
 the Attorney-General, the Secretary of the Commonwealth, 
 the Auditor and Treasurer, the Judges and Registers of Pro- 
 bate, the Sheriffs, Clerks of Court, Commissioners of Insolven- 
 cy, District Attorneys, and Trial Justices, instead of having 
 them appointed by the Governor, or chosen by the Legislature. 
 You are asked to abolish the tax qualification of voters, and 
 to adopt the " secret ballot" as a constitutional principle. You 
 are asked also to establish the plurality principle in the elec- 
 tion of certain officers, to make certain changes concerning 
 Harvard University, the school fund, and the militia. All this 
 mixture of subjects involves, so far as I can perceive, no im- 
 portant question of principle, but I shall have occasion to sub- 
 mit to you hereafter, that many of them involve very grave 
 questions of expediency. They are thrown out as so many 
 tubs to the whale ; and although I do not at all concur in the 
 estimate in which politicians of a certain school are accus- 
 tomed to hold the sense and intelligence of the people of 
 Massachusetts, treating them as a people who are to be 
 caught by such devices, I can easily see, in these things, 
 proof that such is the estimate in which you are held, by those 
 who propose to you such objects for your constitutional action, 
 in the same category, and under the same ballot, with the rep- 
 resentative system and the tenure of the Judiciary. 
 
 But let us look a little further into this first proposition, in 
 connection with what is avowed in the Address of the Con- 
 vention. The character and operation of the system of rep- 
 resentation embraced in it may be examined hereafter. It is 
 sufficient to observe, here, that the system is confessed in the 
 Address to be unequal. You will see, when you come to ex- 
 amine it, that it is grossly and oppressively unequal and un- 
 just. The important admission of the Address is, that " the 
 inequality of representation between particular towns, when 
 tested solely by population, may in some cases apparently be 
 great." The palliations offered for this inequality we will dis- 
 cuss in another connection. Observe, now, that this system, 
 thus confessedly unequal, more unequal than any former 
 system, for which the separate existence of the towns has been 
 supposed to be a justification, and so grossly unequal as to 
 have startled the public mind by its bold and daring injustice, 
 2
 
 14 TRICKS OF PARTY. 
 
 has been artfully wrapped up with the tender of a district 
 system based upon population, which you can only reach at a 
 future day, by first adopting the system devised by a majority 
 of the Convention. After explaining the motives of the 
 majority, and defending the system on which they require you 
 to vote, the Address proceeds to say : 
 
 " But our deliberations have not been confined to the proposed sys- 
 tem. Many of your delegates are of opinion, that the State should be 
 divided into districts for the election of representatives according to 
 the number of votes in each. In this opinion a large majority of the 
 Convention do not concur ; but we think it our duty first to interpret 
 the people's will, and then to give a fair opportunity for its expression 
 upon all questions of importance, whenever such a course is practica- 
 ble. We have, therefore, made a constitutional provision that the 
 Legislature of 1856, under the census to be taken in 1855, shall pre- 
 sent a district system, which may be then substituted for the one rec- 
 ommended by the Convention, if in the judgment of the whole peo- 
 ple it is wise to make the change." 
 
 So that the course of the Convention is this. They devise 
 a system of representation, which they admit is unequal 
 towards the cities and large towns, and they address this sys- 
 tem directly to the selfishness and love of power of a majority 
 of the legal voters of the Commonwealth ; for it is undeniable 
 that the voters in the towns which will least feel the operation 
 of the inequality, and the towns which will gain by it, taken 
 with those voters elsewhere who will embrace it from party 
 motives, will be a majority of the voters of the State. The 
 system is tied up with the specious offer of an equal system 
 of districts, to be provided for by the Legislature three years 
 hence, and to be tendered to that same majority of legal voters, 
 as a substitute for the system under which they will have pre- 
 viously gained a power in the Legislature, which they will 
 then be persuaded they ought not to surrender. If, therefore, 
 the first proposition of the Convention shall be adopted, the 
 Constitution of Massachusetts will stand thus : A system of 
 representation will be in force that is so unequal as to give to 
 one man, in some instances, nine times as much political 
 power as to another, and this system, established by the will 
 of a majority of the legal voters of the State, we must live
 
 TRICKS OF PARTY". 15 
 
 under for three years, before we can even get the right to make 
 what will then be an entirely ineffectual appeal to that major- 
 ity, for the substitution of a just and equal system. 
 
 Can any thing be more grossly apparent than the purpose 
 of this contrivance ? Was there ever any thing more plainly 
 devised for the establishment and perpetuation of the power of 
 party ? If we can suppose this appeal to what are called in 
 the Address the "rural districts," and " the different interests 
 and sections of the Commonwealth," to be successful ; if the 
 sense of justice and the moral principle of the voters in those 
 districts cannot resist this appeal in 1853, does any man be- 
 lieve that in 1856 these leaders of the Coalition party will not 
 press the same appeal against the adoption of a system of 
 equal representation by districts ? Does any man suppose, 
 that we shall not hear the same language employed to excite 
 the jealousies of " the different interests and different sections 
 of the Commonwealth " against each other ? that " the rural 
 districts," and " the agricultural and mechanical population," 
 will not then be told, as they are now told in this Address, 
 that this unequal system only secures to them " their reason- 
 able share of power in one branch of the Legislature " ? that 
 they will not then be invited to consider that the Governor 
 represents the voters of the State, and that the Council and 
 Senate represent population without reference to voters, and 
 therefore that they need have no qualms of conscience about 
 the lion's share, which they have gained, and may well keep, 
 in the House of Representatives ? 
 
 If this language, and these motives, are sufficient now for 
 the acquisition of such power, they will be sufficient for its 
 retention hereafter. If, within the cities and towns against 
 which this system is to operate, there are voters enough now 
 to join, from party motives, with those in the smaller towns 
 on whom party motives and local and sectional policy will 
 both be brought to bear, and thus secure the establishment of 
 the system recommended by the Convention, the hope that it 
 will be quietly and generously surrendered in 1856 would be 
 an idle delusion. 
 
 They who gain power by such means as the majority of 
 this Convention have contrived, are not men to be very scru-
 
 16 TRICKS OF PARTY. 
 
 pnlous about the means of retaining it. There is no reason- 
 able hope for the final establishment of a fair, equal, and safe 
 system of representation in this Commonwealth, excepting 
 through the defeat of this proposition of the Convention, by 
 the sense of justice, the love of right, and the moral principle 
 of a majority of the people, wherever they may be situated or 
 found. 
 
 Let us look at some of the justifications put forth by the 
 Convention to palliate the injustice of their system. I pass 
 by the unstatesmanlike and anti-republican notion of different 
 interests and different sections in such a Commonwealth as 
 this, requiring to be recognized and confirmed by its Constitu- 
 tion. It has been admirably demonstrated by Mr. Choate, in 
 his speech on this subject, a speech which contains the 
 true philosophy of our institutions, that, in a homogeneous 
 population like that of Massachusetts, where every man, to 
 use his apt illustration, is within a day's ride of every other 
 man, where pursuits and callings of all kinds are insepara- 
 bly intermingled, and where the same natural rights are ad- 
 mitted by the civil law to belong equally to all, a diversity 
 of interests requiring to be adjusted by positive law is the last 
 idea which ought to be admitted into a constitution. But if 
 men who are loudest in their profession of the democratic 
 principle of equal rights choose to desert and deny their own 
 principles, I am not disposed to exert myself to convince them 
 of their error. If I can do a little towards preventing them 
 from misleading others, it will be all I can desire. With this 
 view, let me ask you to examine one of the great sophistries 
 of this Address, which was intended to be extremely effective. 
 " We invite you," says the Address, in justification of the ad- 
 mitted inequality of this system of representation, "to con- 
 sider that the Governor represents the voters of the State ; 
 that the Council and Senate represent population without any 
 reference to voters, and, as a consequence, that these two de- 
 partments of the government will eventually be in the control 
 of the cities and chief towns ; and, finally, that we have 
 sought only to secure to the several districts and to the agri- 
 cultural and mechanical interests a reasonable share of power 
 in one branch of the Legislature. This influence gives to this
 
 TRICKS OF PARTY. 17 
 
 portion of the people power to assent to, but never to dictate, 
 the policy of the government." 
 
 The share of power thus sought to be secured for the " rural 
 districts " in the House, is admitted to be more than their 
 equal share, if their rights are measured by population or by 
 voters ; and, in some instances, on a comparison of one place 
 with another, the figures will prove it to be as nine to one. 
 So that the logic of the Convention is, that, because the cities 
 and large towns may have voters enough to choose the Gov- 
 ernor, and population enough to elect a majority of Senators, 
 upon a system of equality with respect to those departments, 
 therefore the principle of equality ought not to prevail in the 
 basis of the House, but a smaller number of voters, and a less 
 amount of population, ought to elect a larger proportion of 
 representatives than a larger population or a greater number 
 of voters. 
 
 Now, in opposition to this theory, on which you are asked 
 by the Address to fix your contemplation, you may well be 
 invited to consider what an act of legislation is, and what it 
 involves. In every government, the Legislative Power, 
 whether acting through a greater or less number of branches, 
 is a unit. In our system, it is divided into three coordinate 
 branches, the Senate, the House, and the Governor. The 
 assent of each of these branches is necessary to the making 
 of a law. The Senate and the House have a check upon 
 each other, and the Governor has a check upon both collec- 
 tively. This system, in this respect, the Convention do not 
 propose to change ; and if they did, the bones of John Adams 
 would not lie still in his coffin. 
 
 In a government, then, in which the Legislative Power acts 
 through three coordinate branches, the Convention undertake 
 to say, that the fact that an inhabitant of a city is represented 
 in two of them equally with the inhabitant of a " rural dis- 
 trict," is a justification for depriving him of an equal repre- 
 sentation in the third. The fallacy of this becomes at once 
 apparent, from the consideration that, in the enactment of a 
 law, if A is not represented in one of the coordinate branches 
 of the Legislative Power upon the same principles of equali- 
 ty with B on which both are represented in the two other de- 
 2*
 
 18 UNEQUAL REPRESENTATION. 
 
 partments, his consent to the enactment of that law cannot 
 with propriety be said to have been given, for in fact he has 
 not had an equal opportunity to exercise the power which the 
 theory of the government pretends to secure to him, in all the 
 three branches, when it gives them coordinate power. And 
 yet, in the face of this undeniable truth, the majority of the 
 Convention put forward a system of representation, which 
 they admit to be unequal, and which they appeal to sectional 
 interests and jealousies to establish, because it is unequal, and 
 then coolly tell us, that " no human government can attain to 
 theoretic accuracy." If this system is adopted, we shall see 
 that human governments can attain both to theoretic inaccu- 
 racy and to practical wrong, to an extent of which we have 
 not heretofore supposed our republican institutions to be 
 capable. 
 
 PHOCION. 
 
 No. III. 
 
 IN the last paper on this subject, I called your attention to 
 the fact, that the first proposition on which you will be re- 
 quired to vote embraces a system of representation, which, if 
 it is ever adopted by a majority of the legal voters of the 
 State, upon the principles and motives on which they are 
 asked to adopt it, will render the establishment of a fair and 
 equal system, at any future period, extremely improbable, not 
 to say impossible. 
 
 I referred to the manner in which the Convention have post- 
 poned even the offer of an equal system of representation by 
 districts, to a period when their unequal system will have been 
 for three years the law of the land, and when the same ap- 
 peals will inevitably be made to the same motives, for retain- 
 ing the power that will thus have been unjustly acquired. I 
 now ask you to examine the reasons assigned by a majority 
 of the Convention for the course they have taken in the con- 
 struction of their first proposition.
 
 UNEQUAL REPRESENTATION. 1U 
 
 " Many of your delegates," says the Address, " are of opin- 
 ion, that the State should be divided into districts for the elec- 
 tion of representatives according to the number of voters in 
 each. In this opinion a large majority of the Convention do 
 not concur ; but we think it our duty first to interpret the peo- 
 ple's will, and then to give a fair opportunity for its expression 
 upon all questions of importance, whenever such a course is 
 practicable. We have therefore made a constitutional provis- 
 ion that the Legislature of 1856, under the census to be taken 
 in 1855, shall present a district system, which may be then 
 substituted for, the one recommended by the Convention, if, in 
 the judgment of the whole people, it is wise to make the 
 change." The inconsistency of first interpreting the people's 
 will to be in favor of an extremely unequal system of repre- 
 sentation by towns and cities, and then providing for the ex- 
 pression of a different will, three years hence, is obvious and 
 glaring, when the two are presented in the same proposition. 
 
 The people are required to vote upon what is deceptive ; 
 for those who may desire a district system, having no oppor- 
 tunity to express their preference except by a vote which must 
 establish the unequal system of the Convention, are placed in 
 the position of being obliged to vote in favor of the latter, or 
 to vote against the former. The idea of tendering to them a 
 future chance of getting an equal system, after they have thus 
 been compelled to vote in favor of an unequal one, or have 
 their votes counted against the system which they would pre- 
 fer, is a mockery. Had the majority of the Convention seen 
 fit, as in all fairness they were bound to do, to present the two 
 systems as alternatives, in distinct propositions, the people 
 would have had a present opportunity for the expression of 
 their wishes, that would have given justice, principle, and right 
 an equal chance against injustice, want of principle, and 
 wrong. As it is, a district system, or any other just and fair 
 plan, may be considered as out of the question, if there are a 
 majority of voters in the State willing to be influenced in 
 1853 by the motives, and willing to act upon the principles, 
 which the Convention have interpreted as their will. 
 
 But let us look a little farther into this doctrine of interpret- 
 ing the people's will to be in favor of the system devised by
 
 20 UNEQUAL REPRESENTATION. 
 
 the Convention. If the Convention had any authority to in- 
 terpret the will of the people beforehand, it must by all cor- 
 rect reasoning have been the will of the whole people, or at 
 least that of a majority, which they were to interpret. And 
 in making this interpretation, every delegate was bound to 
 regard himself as acting for the whole people, and for their 
 rights and interests, and not for the rights and interests of his 
 immediate constituents alone. If he was to interpret the will 
 of the people, he was not to interpret the will of his town, 
 still less the will of the party that chose him to be a delegate. 
 If he was to interpret the will of the people, he was just as 
 much bound to regard and to collect the evidence of that will 
 in the cities and large towns, as in the " rural districts " ; 
 just as much bound to consider what would be the wishes of 
 that half of the people who reside in towns containing more 
 than a given amount of population, as to regard those of the 
 other half of the people, who reside in towns containing less 
 than that amount. If, for the purpose of framing a proposi- 
 tion, which was to have the effect of establishing an unequal 
 system, by excluding the power of voting directly upon an 
 equal one, he was to constitute himself the judge of the peo- 
 ple's will, and thus create a foregone conclusion, he was bound 
 to interpret that will fairly, honestly, and upon the principles 
 justly applicable to the duty before him. 
 
 Now there was no evidence whatever that a majority of 
 the people desired a system of outrageous inequality. To as- 
 sume that they did, is to assume what no delegate had a right 
 to impute to them. It assumes that a majority of the people, 
 from local and sectional policy, and from party motives, are 
 willing and determined to establish a basis for the House of 
 Representatives, on which one half of the population of the 
 State will have one hundred and fifteen more members than 
 the other half. So far as any presumptions are applicable to 
 the subject, they are all against the supposition, that such can 
 be the will of a majority of the people. The presumptions 
 are, that a majority of the people mean to do right, and to 
 establish and maintain justice ; and he who acts in -a public 
 trust upon any other presumption, violates the first principles 
 of the trust with which he has been clothed.
 
 UNEQUAL REPRESENTATION. 21 
 
 Again, even if the Convention were authorized, from an- 
 cient usage and the habit of representation by towns and 
 cities, to infer that it is the will of the people to continue that 
 mode of electing their representatives, there was no ground 
 whatever for them to assume that the people desired to make 
 the inequalities of that system greater than they are now. So 
 far as the people have spoken, they have expressed a desire 
 for a better basis, not a worse one, than that which now exists. 
 So far as there have been complaints, they have been that the 
 corporate system produces inequality, not that it tends to 
 equality. In truth, the action of the people, in directing the 
 Convention to assemble for the purpose of reforming the basis 
 of the House, if it indicates any wish, tends to show that 
 they desired some system which would relieve and remove the 
 inequalities resulting from a rigid adherence to town lines. 
 There is nothing whatever to show that the people intended, 
 when they sanctioned the act calling the Convention, to have 
 a system devised, avowedly, for the purpose of favoring the 
 smallest towns in the Commonwealth, and of giving them, 
 for the very reason that they contain the smallest number of 
 voters, or the least amount of population, the largest ratio of 
 political power assigned to any communities in the State. It 
 cannot be supposed that the people intended to introduce a 
 false principle into their government, which would make the 
 political power of one half of them, in one branch of the 
 Legislature, nearly twice as great as that of the other half, 
 simply because their local habitations are in municipal corpora- 
 tions which respectively embrace fewer inhabitants than those 
 in which the rest of the people reside. Still less is there any 
 pretence for saying, beforehand, that a majority of the people 
 of Massachusetts desire and intend to introduce into their 
 government another vicious principle, which is to recognize 
 the necessity of giving to those engaged in agricultural or 
 mechanical pursuits any larger share of power, in one branch 
 of the Legislature, than that assigned to men of other pur- 
 suits. Such a principle may find a place in a government 
 which recognizes classes, and is therefore obliged to provide 
 for the interests of the classes which it recognizes, as being in 
 some sort adverse to the interests of the rest of the commuiii-
 
 22 UNEQUAL REPRESENTATION. 
 
 ty ; but it is wholly out of place in a republican government, 
 and is a sheer violation of the principles of democracy. 
 
 How would it have sounded in the formation of the Con- 
 stitution of the United States, when the Federal Convention 
 of 1787 were engaged in framing a system of representation 
 for the whole American people, if it had been claimed that 
 the agricultural States ought to be represented in a much 
 larger proportion to their actual populations, than the com- 
 mercial or manufacturing States ? Such a claim could only 
 have been founded on the pretence on which the present, 
 claim for a similar distinction on a smaller scale is rested ; 
 namely, that the agricultural communities ought to have more 
 legislative power than the commercial or manufacturing com- 
 munities, simply because they are agricultural and not com- 
 mercial or manufacturing. The great statesmen who framed 
 the Constitution of the Union were likewise great republicans; 
 and they knew well, that, whatever difference of pursuits may 
 lead to an apparent difference of interests, as between one 
 community and another, there is no method by which the 
 democratic principle can be introduced into the legislative 
 power of a government, but by making every man equal in 
 political power to every other man, by a numerical representa- 
 tion of the whole. How absurd then it is, and how utterly 
 subversive of the democratic principle, to introduce into a 
 State, where neither caste nor class exists, where there are 
 less than a million of people of all occupations, where dis- 
 tinctions and privileges are unknown and ignored, a basis 
 of power in the legislative department of the government, 
 founded on the idea that men engaged in one pursuit, or re- 
 siding in a town of a particular size, ought to have more 
 voice in the enactment of laws than all the rest of the com- 
 munity ! But it is unnecessary to enlarge upon this subject; 
 the Convention have manifestly put a false interpretation upon 
 the will of the people, and have contrived the means, as far 
 as lay in their power, for producing a false expression of it. 
 
 I desire not to be understood because in these remarks a 
 district system has been contrasted with that proposed by the 
 Convention to insist, that representation by districts is the 
 only mode in which an approach to something like equality 
 can be made.
 
 UNEQUAL REPRESENTATION. 23 
 
 There certainly are no insuperable difficulties in the way of 
 the adoption of the district system. It has been demonstrated, 
 that the Commonwealth can be divided into districts so nearly 
 equal in point of population, as to produce an average repre- 
 sentation, in which all appreciable inequality would disappear. 
 But if the feelings and wishes of a majority of the people are 
 in favor of adhering to the principles of corporate representa- 
 tion by towns and cities, from the idea that the municipal in- 
 terests of every town require that it should be always repre- 
 sented by one of its own citizens, or from any other idea or 
 feeling, why, in the name of all sense and reason, should 
 not the representation be so arranged as to produce as close 
 an approximation to a true political equality as the system of 
 town representation will admit ? The only plausible reason 
 that can be assigned for adopting a varying ratio, which gives 
 to an inhabitant of one place less political power than to an 
 inhabitant of another, when the former lives in a town con- 
 taining more inhabitants than the place where the latter re- 
 sides, must be, that it is desirable to reduce the size of the 
 House from what it would be under an exact numerical repre- 
 sentation of the whole people. But to my mind there are 
 worse evils that may befall the social and political condition of 
 this Commonwealth, than a large House of Representatives. 
 I have sat in a House of at least six hundred members, and at 
 a time when parties ran very high, and were almost equally 
 divided. The assembly was as intelligent, transacted business 
 with as much despatch, and with as thorough an understand- 
 ing of the subjects before it, as any House that has existed 
 since, or that will be likely to exist under any system of repre- 
 sentation that may be adopted within the next quarter of a 
 century. Above all, and this consideration is one that 
 should occupy the first place in any scheme for adjusting this 
 difficult matter, it was an honest body! swayed doubtless 
 at times by party appeals, and sometimes influenced by prej- 
 udice, but in the main acting conscientiously, and probably 
 acting with the more uprightness, from the very fact that it 
 was so numerous. But conceding, as one may well concede, 
 that, from motives of economy, and having regard to the due 
 accommodation of the body itself, it is necessary to keep the
 
 24 UNEQUAL REPRESENTATION. 
 
 number of the House within a certain limit, no satisfactory 
 reason can be given why the principle to be adopted should 
 not be that of the utmost practicable equality, consistent with 
 the plan of corporate representation. The system of the Con- 
 vention is directly the reverse of this. 
 
 It begins with assigning for the class of the smallest towns 
 so low an amount of population, as the number requisite for 
 one representative, and then varies the ratio for every additional 
 member so capriciously, as the towns increase in size, that it 
 arrives at last at a point where nine men in one place have 
 only the same political power with one man in another place. 
 It is absurd to pretend that this is either necessary or expe- 
 dient. The necessity of adhering to town representation does 
 not require it, and the expediency of a small House cannot 
 justify it. Nothing can justify the introduction into a state of 
 a distinct, marked, and decided political inferiority of one por- 
 tion of the people to another portion, in point of political power, 
 except the existence of classes, which require to be protected 
 from the encroachments of each other. 
 
 Let it also be understood, that I do not oppose the adoption 
 of this Constitution, solely or principally, because it is to af- 
 fect the city of Boston by the loss of a certain number of 
 members in the House of Representatives. If it were the 
 pleasure of the people of the State to place this city under a 
 ban, and to refuse to its inhabitants the same voice in mat- 
 ters of legislation that is accorded to the residue of the people, 
 I should regard it as very foolish and unjust, but I should not 
 think it worth while to oppose a Constitution, which I believed 
 right in other respects, for that reason alone. The city of Bos- 
 ton might probably continue to prosper, and its inhabitants to 
 be reasonably secure of obtaining all that they want from the 
 justice of the Legislature, even with a smaller proportional 
 delegation than that of other cities and towns. But the radi- 
 cal vice of this Constitution, in the matter of representation, 
 is, that it affects injuriously, not one city only, but all the 
 cities ; not one town only, but all the towns having the mis- 
 fortune to possess more than two or three thousand inhabit- 
 ants ; not the counties only, relatively to each other, but the 
 towns in one county, relatively to others in the same county.
 
 UNEQUAL REPRESENTATION. 25 
 
 For example, the whole population of the State, according to 
 the State census of 1850, was 973,715, of which a quarter 
 part is 243,428. A very small fraction over one quarter of the 
 people, or 243,485, reside in 197 towns, of 2,065 inhabitants 
 or under, and they will elect upon this system 131 representa- 
 tives annually, including the average of the 64 towns which 
 elect every other year. Another quarter, amounting in all to 
 243,457, reside in 84 towns, of 2,074 to 4,379 inhabitants each, 
 and they will elect 130 representatives. Thus one half of the 
 people will elect 261 representatives. The third quarter of 
 the people, amounting to 245,692, reside in the 28 towns of 
 the largest class and the 6 cities of the smaller class, and they 
 will elect but 82 representatives. The fourth quarter of the 
 people, inhabiting the 6 largest cities, numbering 241,988, will 
 elect 64 representatives only. The second half of the people, 
 therefore, will elect 146 representatives, while the first half will 
 elect 261 ; majority in favor of the first half of the people, 
 115. In the first quarter there will be one representative for 
 every 1,868 inhabitants; in the last quarter, there will be one 
 representative for every 3,766 inhabitants. 
 
 But let us take a single county; and for the sake of com- 
 paring one agricultural town with another, and in order to 
 take a county in which there is not a single city, let us select 
 the county of Franklin. The town of Deerfield is a purely 
 agricultural town, and contains a population of 2,421. The 
 town of Monroe, also an agricultural town, has a population 
 of 254. Under the system of the Convention, every inhabit- 
 ant of Monroe, for six years out of ten, will outweigh every 
 nine inhabitants of Deerfield ; and on an average throughout 
 the ten years, every 31 inhabitants of Monroe will outweigh 
 every 242 inhabitants of Deerfield. Take another illustration, 
 from the same county. The following six towns : 
 
 Coleraine, 1,785; Greenfield, 2,580; 
 
 Conway, 1,831 ; Montague, 1,518 ; 
 
 Deerfield, 2,421; Northfield, 1,772; 
 
 containing 11,907 inhabitants, will be entitled to one represent- 
 ative every year ; and there are six other towns in the county, 
 containing in all 3,744 inhabitants, which during six years out 
 3
 
 26 UNEQUAL REPRESENTATION. 
 
 of every ten will be able to tie the vote of the 11,907 in the 
 House of Representatives. 
 
 With reference to this state of things, a Greenfield paper 
 puts the following significant question : 
 
 " Is it really true, that the standard of honesty and intelligence is 
 higher in Erving than in Deerfield ? or in Monroe than in Coleraine ? 
 or in Leyden than in Montague ? If not, then will any man tell us 
 why, on an average of ten years, every 45 voters in Erving should 
 balance every 258 voters in Greenfield, and why, during six years out 
 of every ten, one voter in Erving should match every six in Greenfield 
 or Deerfield, and every four in Northfield, Conway, or Montague. 
 There is but one reason. It is not principle. It is PARTY." 
 
 These statements are sufficient to show the character, 
 operation, and effect of the proposed system. It is a blow 
 aimed at intelligence, property, and numbers, wherever they 
 are congregated in masses ; and they are to feel it and suffer 
 under it, in proportion to their weight in the social scale. 
 The principle adopted is that of increasing the political power 
 of a community, by a rapidly increasing ratio, in proportion 
 as its numbers and its wealth fall below those of other com- 
 munities. It is pretended, but falsely pretended, to be a dis- 
 tinction in favor of rural, agricultural, or mechanical districts, 
 against commercial and manufacturing populations. It is, in 
 fact, a distinction in favor of communities lowest in point of 
 numbers, intelligence, and property, as against all the other 
 communities, without any real reference to a distinction be- 
 tween the interests or employments of the people. If the 
 Commonwealth of Massachusetts means to adopt this princi- 
 ple of distributing political power, instead of the principle of 
 the political equality of all her citizens, it will not be many 
 years before the character of her legislation will show the 
 effects of the change. 
 
 PHOCION. 
 
 NOTE. The above calculations concerning the operation of the new system in 
 the county of Franklin are taken from the Greenfield Gazette and Courier. They 
 were prepared by a gentleman in that county, in whose accuracy I feel perfect con- 
 fidence. The other calculations in this paper are taken from those made by Mr. 
 Hale, of the Daily Advertiser. I believe the results arrived at by Mr. Sargent (of 
 Cambridge) give a majority of two members less (that is, a majority of 113, instead
 
 SMALL TOWNS. 27 
 
 No. IV. 
 
 IF the reader is not already weary of the subject of repre- 
 sentation, I propose to consider it in another aspect, and to 
 examine the scheme of the Convention with reference to an 
 assertion made in the Address, by which it undertakes to jus- 
 tify the admitted inequality of representation embraced in 
 that scheme. 
 
 " We invite you," says the Address, in a passage which I have 
 quoted before, " to consider that the Governor represents the voters 
 of the State ; that the Council and Senate represent population without 
 any reference to voters, and, as a consequence, that these two depart- 
 ments of the government will eventually be in the control of the cities 
 and chief towns ; and finally, that we have sought only to secure to 
 the rural districts, and to the agricultural and mechanical population 
 and interests, a reasonable share of power in one branch of the Leg- 
 islature. This influence gives to this portion of the people power to 
 assent to, but never to dictate, the policy of the government." 
 
 I deny the assertion, that the arrangements made in this 
 Constitution give to that portion of the people, whose " rea- 
 sonable share of power in one branch of the Legislature " it 
 secures, only the power to assent to, but not to dictate, the 
 policy of the government. I affirm, that the whole Constitu- 
 tion is an artfully contrived scheme, for the purpose of ena- 
 bling the inhabitants of the small towns to dictate and con- 
 trol the policy of the government, and that, if it is adopted, 
 the laws of Massachusetts will be made by a minority of the 
 people. 
 
 Let me ask your attention to the proof of this assertion. 
 
 I have already shown, in the last paper, that one half of the 
 people, living in 281 towns of 4,379 inhabitants each and un- 
 der, will elect, under this system, one hundred and fifteen 
 
 of 115) to that half of the people which is to obtain the great preponderance of 
 political power. The difference is not material. The great question is, under all 
 the calculations, what I have endeavored to state in this paper, viz. : Why intro- 
 duce inequalities not required by any necessity, and not to be justified by any 
 expediency ?
 
 28 SMALL TOWNS. 
 
 more representatives than the other half of the people living 
 in the other towns and cities. It is clear, therefore, that a 
 small minority of the people will elect a majority of the rep- 
 resentatives ; and if the majority that may be so elected by a 
 minority of the people should be of the same political party, 
 or of two parties willing to coalesce, although it should be 
 only a majority of five or ten, it would control the action of 
 the House. In judging of the propriety of adopting a new 
 scheme of government, which is to place the three branches 
 of the legislative power in entirely new relations with each 
 other, in consequence of the establishment of different modes 
 of electing each of them, and a different rule of determining 
 what constitutes an election, we must take into consideration 
 the fact, that the people are divided into political parties, and 
 we must also, in this case, remember, that they are divided 
 into three parties, two of which, in matters of legislative ac- 
 tion, have sufficiently evinced their determination to act to- 
 gether as one. 
 
 With regard to the election of Governor, the proposed Con- 
 stitution retains the majority principle. It gives the Legisla- 
 ture power to change that rule to a plurality. But, with a 
 majority of representatives elected by the two coalition par- 
 ties, that change, as long as the three parties retain their present 
 popular relations to each other, will never be made. The 
 chances are, in the present state of things, against an election 
 of Governor by a majority of the people. Whenever the 
 election devolves on the Legislature, the House of Represent- 
 atives, according to the proposed Constitution, are to select 
 two out of the three persons having the highest number of 
 votes, and return them to the Senate, from whom the Senate 
 is to choose one to be the Governor. The majority of repre- 
 sentatives, elected by a minority of the people, of course will 
 determine the two candidates to be sent to the Senate, and 
 they will, also of course, not send the one politically opposed 
 to them. Thus "the reasonable share of power" secured to 
 a majority of the people in the House of Representatives will, 
 in the most direct manner, be exercised to determine the polit- 
 ical character of the Governor ; and, therefore, two branches 
 of the legislative power will rest upon the votes of a minority 
 of the people.
 
 JUDICIARY. 29 
 
 It is true that this result depends upon the contingency of 
 the majority of representatives, who will be elected by a mi- 
 nority of the people, being of the same political party, or of 
 two parties having a common object to accomplish in the 
 choice of a Governor; but this contingency, in case of the 
 adoption of this Constitution, is not only possible, but ex- 
 tremely probable. If, by a constitutional arrangement, it is 
 in the power of a minority of the people, dwelling in a cer- 
 tain class of small towns, thus to acquire the control of two 
 branches of the legislative department of the government, 
 the existence of the power will have a very strong tendency 
 to bring about the result, and to cause the inhabitants of those 
 towns to adhere in general to that political party which is to 
 gain such an enormous advantage. But, even if this result 
 were only possible, and not probable, its possibility is a suffi- 
 cient refutation of the pretence set up in the Address of the 
 Convention, and a sufficient objection to their scheme. Con- 
 stitutions are made, or should be made, with a view of 
 preventing a minority of the people from obtaining the con- 
 trol of the legislative department, and not with a view of per- 
 mitting, still less of encouraging, such a result. 
 
 You should also take along with you, in judging of this 
 part of the scheme, the fact that, by this proposed Constitu- 
 tion, the appointing power of the Governor is to be greatly 
 increased, in reference to another distinct department of the 
 government. Although the Convention propose to take from 
 the Governor the power of appointing some of the executive 
 and administrative officers of the government, they retain to 
 him the power of appointing the Judges of the Supreme 
 Court and the Court of Common Pleas, who are to be com- 
 missioned, when appointed, for ten years only, instead of 
 during good behavior. If, therefore, a majority of the present 
 Judges of either Court should die in any one year, the Governor 
 would have, for ever after, the appointment of a majority of that 
 bench once in every ten years ; while the Governor himself, by 
 whom those appointments would be made, might owe his elec- 
 tion to a minority of the people. Thus the proposed Constitu- 
 tion, so far from giving this minority only the power to assent 
 to, but never to dictate, the policy of the government, places
 
 30 SENATE. 
 
 two branches of the legislative department, together with the 
 judiciary, within their control, in any year when the election 
 of Governor is thrown into the Legislature, and there are va- 
 cancies on the bench of either of the Courts. 
 
 Let us now turn to the other branch of the legislative de- 
 partment, and see how it will be with regard to the Senate. 
 It is quite true that a majority of all the people of the State 
 may elect a majority of Senators, and that the cities and 
 towns, which contain respectively more than a certain number 
 of inhabitants, will be found to contain a majority of the 
 people of the State. But deserting, in this instance, the ma- 
 jority principle, the Convention have provided that, for the 
 choice of Senators, the State shall be divided into forty dis- 
 tricts, containing an equal amount of population, and each 
 entitled to elect one Senator, and that the person having the 
 highest number of votes is to be declared elected. Under 
 this system, it is possible for twenty-one Senators to be 
 elected, who will be of the same political party or parties 
 with the majority of the House, and who will only theoreti- 
 cally represent a majority of the people in their districts. In 
 this case, therefore, the political party or parties, who had ob- 
 tained, through the votes of a minority of the people, the 
 control of the House, and the power of determining the polit- 
 ical character of the Governor, would also possess the Senate. 
 It is clear, therefore, that under this Constitution, in contin- 
 gencies which are both possible and extremely probable, the 
 laws of Massachusetts will in fact be made and administered by 
 a minority of the people. 
 
 Let me ask you, then, to judge of this Constitution in its 
 influence on the general character of the legislation of the 
 State. I need not say to you, that laws made by a minority 
 of the people, through an artificial arrangement of the legis- 
 lative power, belong to aristocratic governments, in which the 
 power of governing is lodged in certain classes ; and that in 
 a republic, laws, which are habitually known to emanate from 
 the will of a minority, cannot be respected or acquiesced in. 
 When the laws rest upon such a basis, among a people who 
 have been accustomed to live and act under the doctrine that 
 law is the will of society, expressed through the voice of a
 
 MINORITY TO GOVERN. 31 
 
 majority, there must be a growing disregard for the authority 
 of all law. A people who cannot appeal to the highest sanc- 
 tions of law, in the general will, must either surrender the 
 name of republicans, and consent to be governed by an oli- 
 garchy, or they must become restive and unwilling subjects 
 of a rule, that reposes on no foundation of justice and right. 
 
 Let me also ask you to look at the particular influences of 
 this Constitution on the legislation of the State. 
 
 In the first place, look at it in its influence on the relations 
 of particular sections of the State to each other. An attempt 
 is now made to introduce a discrimination, founded on the 
 idea of antagonistic interests, as between city and country, 
 rural and commercial populations, and places of different 
 magnitudes. This idea is to be engrafted into the Constitution 
 of the State, as a basis on which political power is to be distrib- 
 uted. The great ideas embodied in the fundamental law of 
 a people necessarily affect and influence their legislation. It 
 is so in all governments, and ours can be no exception to the 
 operation of a principle which is founded in human nature, 
 and is universally operative. This idea of a discrimination 
 in favor of rural or mechanical populations, or populations of 
 a certain size, will be followed out in legislation ; and, as we 
 are to have a Constitution made for rural districts and small 
 towns, and people of certain occupations, so we shall have 
 laws made for the same purpose, in the same spirit, and to 
 carry out the same idea. This has never happened before, 
 among us, because no former system of representation was 
 ever based upon the idea of such a discrimination. It will 
 happen hereafter, should this Constitution be adopted, because 
 the discrimination will have been expressly made the basis 
 for assigning a preponderance of political power to certain 
 classes of men or classes of towns. 
 
 In the second place, look at the influence of this Constitu- 
 tion on the legislation of the State in reference to the internal 
 affairs of particular places. The cities of this Common- 
 wealth are bodies politic, to which a certain portion of the 
 legislative power of the State has been granted by charter for 
 the local purposes of a population, whose wants require, in 
 some respects, different provisions of law from those of less
 
 32 MINORITY TO GOVERN. 
 
 populous places. But the special powers of these local legis- 
 lative bodies are not large. The powers of our municipal 
 corporations, as compared with those of other cities in the Old 
 World, and with those of some cities in other States of this 
 Union, are small, and relate to but few objects. They have 
 been kept so, because the character of the central government 
 of the State has been beneficent, and almost paternal ; be- 
 cause all men have had ready access to the general legisla- 
 ture ; and because, whenever the particular convenience of 
 individuals, or the wants of a particular population, have re- 
 quired special legislation, it has been readily and liberally 
 afforded. The charters of the cities have thus, when first 
 granted, been kept within narrow limits. Their legislative 
 power has been increased only from time to time, as necessity 
 required, and has never been extended to those objects which 
 appropriately belong to the cognizance of the general leg- 
 islature. But adopt a Constitution, which is to have the 
 effect of making the inhabitants of these cities feel that they 
 are not duly and rightfully represented in the government of 
 the State, that their objects and their wants cannot command 
 the same attention, and cannot secure the same relief, that 
 they have hitherto had, and you will create a very strong ten- 
 dency to lean upon and resort to the local legislative powers 
 now vested in their municipal bodies, whose authority will be 
 strained, by forced constructions, to provide for objects which 
 have not heretofore been deemed within their cognizance. 
 The consequence will be a great amount of litigation, and, 
 finally, conflict with the central government of the State. 
 
 These considerations may serve as hints, to which your wis- 
 dom and judgment will enable you to give far more effect 
 than I can give in the short space devoted to this discussion. 
 But the great consideration, after all, is that on which I have 
 again and again insisted ; namely, that this Constitution gives 
 to a small minority of the people power to control and determine 
 the character and policy of the government. Those who tell you 
 that it only secures to certain interests a share of power, made 
 necessarily larger than that accorded to other interests in the 
 same branch, in order to balance and compensate for irregu- 
 larities produced elsewhere, are only attempting to mislead
 
 JUDICIARY. 
 
 33 
 
 you for their own political purposes. I have spoken of the 
 operation of this Constitution with reference to the power 
 which it gives to certain political parties, and have referred in 
 this to the two parties known as the " Coalition." The argu- 
 ment, if the other party should possess a majority of repre- 
 sentatives elected by a minority of the people, would be pre- 
 cisely as strong, and I trust I should be capable of presenting 
 it in the same light. No constitution is fit for a free people 
 to live under, which enables a small minority of the people to 
 determine the political character of the Legislature, and to 
 control the Judiciary, whether one party or another gains the 
 ascendency by means of it. That constitution alone is fit 
 for a free people to live under, which puts the policy and 
 course of the government into the hands of a majority of the 
 people, or, when that is not always and constantly practicable, 
 comes as near to it as the circumstances and situation of the 
 people will admit. It may be, that the state of political par- 
 ties in this Commonwealth may render it impossible to carry 
 on the government upon the principle of requiring a majority 
 of votes for the election of all officers. If so, and if we 
 have reached a point when a change must be made in this 
 respect, in the name of all that is decent and honest, let it 
 be a change to a system that will have some consistency of 
 principle in its application to the various branches of the gov- 
 ernment. Let it not be a rule applied to one branch, because 
 it will work a political advantage to a party, or to a set of 
 men hankering for the offices of the Commonwealth, and 
 suppressed in another branch, because it would operate in- 
 juriously to their plans. Let it be adopted as a principle, 
 and because it is a principle, which will alone produce the 
 nearest approximation to a strict government of the majority, 
 by operating alike in all the elections in which the people are 
 required to express their will. 
 
 PHOCION.
 
 34 JUDICIARY. 
 
 No. V. 
 
 THE JUDICIARY. 
 
 IMPORTANT as the question of representation is, there is 
 another question, of at least equal importance, involved in the 
 Constitution which you are asked to adopt, in the place of 
 that under which you and your fathers have lived happily and 
 prosperously for a period of more than seventy years. I al- 
 lude, of course, to the change which you are asked to make in 
 the tenure of the Judiciary. 
 
 Our ancestors considered, that the due independence of the 
 judges required that they should hold their offices during good 
 behavior ; and they believed that the independence of the 
 judges is an essential security to the rights of every citizen or 
 subject of the Commonwealth. It is impossible to express 
 the great reasons which connect these two propositions, in 
 the inseparable bands of truth, more forcibly than they are 
 stated in that solemn and impressive declaration of the twenty- 
 ninth article of the Bill of Rights : 
 
 " It is essential to the preservation of the rights of every individual, 
 his life, liberty, property, and character, that there be an impartial in- 
 terpretation of the laws, and administration of justice. It is the right 
 of every citizen to be tried by judges as free, impartial, and indepen- 
 dent, as the lot of humanity will admit. It is, therefore, not only the 
 best policy, but for the security of the rights of the people, and of 
 every citizen, that the judges of the Supreme Judicial Court should 
 hold their offices as long as they behave themselves well, and that 
 they should have honorable salaries, ascertained and established by 
 standing laws." 
 
 No essayist, no writer on government, no publicist what- 
 ever, has succeeded in stating these great truths with more 
 logical precision than they are stated in these memorable sen- 
 tences. The premises are necessary to the conclusion, and 
 the conclusion follows irresistibly from the premises. Change 
 the one or the other, and the doctrine loses all its consistency 
 and all its truth. If the right of every citizen requires that
 
 JUDICIARY. 35 
 
 the judges should be as free, impartial, and independent as 
 the lot of humanity will admit, then a degree of freedom, im- 
 partiality, and independence less than that to which the lot of 
 humanity can be made to attain, is neither the best policy, 
 nor a true security of the rights of the citizen. That a tenure 
 of the judicial office during good behavior, and upon estab- 
 lished salaries, is the highest state of freedom, impartiality, 
 and independence which the lot of N humanity will admit, no 
 man in his senses can deny ; and if it is, any other tenure is 
 manifestly inconsistent with the rights of the citizen, which 
 the declaration establishes. The majority of the late Con- 
 vention have provided for another tenure for the judges here- 
 after to be appointed, namely, that they shall hold their offi- 
 ces for ten years only ; and you will not fail to observe, apart 
 from the question of policy involved in this change, the ab- 
 surdity to which they have reduced the declaration of the Bill 
 of Rights. That declaration, in this new Constitution now 
 proffered to you, they have made to read as follows : 
 
 " It is essential to the preservation of the rights of every individual, 
 his life, liberty, property, and character, that there be an impartial in- 
 terpretation of the laws and administration of justice. It is the right 
 of every citizen to be tried by judges as free, impartial, and indepen- 
 dent as the lot of humanity will admit. It is, therefore, not only the 
 best policy, but for the security of the rights of the people, and of 
 every citizen, that the judges of the Supreme Judicial Court should 
 hold their offices by tenures established by the Constitution, and should 
 have honorable salaries, which should not be diminished during their 
 continuance in office." 
 
 They propose, therefore, that the Bill of Rights of this 
 Commonwealth shall assert it to be the right of every citizen 
 to be tried by judges as free, impartial, and independent as 
 the lot of humanity will admit. But, as if their conclusion 
 had nothing to do with this great premise, they declare, that 
 it is the best policy, and for the security of the rights of the 
 people, that the judges should hold their offices by tenures 
 established by the Constitution, and then go on to provide 
 that they shall hold them for ten years only. If this conclu- 
 sion is true, the premises are untrue ; if the premises are true,
 
 36 JUDICIARY. 
 
 the conclusion is false. If a tenure for ten years is the best 
 policy, and best secures the rights of the citizen, then the rights 
 of the citizen do not require the highest independence which 
 the lot of humanity will admit. 
 
 The framers of this new Constitution seem to have forgot- 
 ten, or not to have known, what the Bill of Rights of this 
 Commonwealth is. It is a declaration of the rights inherent 
 and inalienable in every citizen and subject of the Common- 
 wealth, intended to impose limits on the people themselves, 
 and to declare the principles on which the provisions of the 
 Constitution are to be established. When, therefore, the Bill 
 of Rights declares, that it is the right of every citizen to be 
 tried by judges as free, impartial, and independent as the lot 
 of humanity will admit, it is a self-evident absurdity for the 
 Constitution to establish a tenure of the judicial office which 
 is not as free, impartial, and independent as the lot of human- 
 ity will admit. And when the Bill of Rights further declares 
 what the security of every citizen requires the tenure of the 
 office to be, it must, in order to be consistent with the previous 
 declaration, be a tenure during good behavior. Unless the 
 Bill of Rights itself provides and declares what the tenure of 
 the judicial office shall be, and thereby, for the transcendent 
 reason of securing the rights of every individual, limits the 
 power of the people to enact a different tenure in the Consti- 
 tution, the whole article is entirely out of place. To declare 
 what the right of the citizen requires in the Bill of Rights, and 
 then to go on and enact in the Constitution a plain incon- 
 sistency with that declaration, is doing what no set of law- 
 givers in this Commonwealth ever did before. 
 
 But bad as this botching of the great charter of our liberties is, 
 I will not detain you with mere criticisms on the work of the 
 Convention. The change itself which they propose, and the 
 reasons which they have offered for it, await your examina- 
 tion. In the first place, then, it will not fail to strike you, 
 that, by not altering the tenure of the present judges, the 
 Convention have admitted, that there is no present reason for 
 a change. Will any one venture to say, that the past affords 
 any reason ? I have looked in vain into the Address, for a 
 direct statement, that there has been any thing in the history
 
 JUDICIARY. 37 
 
 of the Judiciary of Massachusetts to require or justify this 
 change. The writers of that document state, indeed, that " in 
 a free government the people should be relieved in a reasona- 
 ble time, and by the ordinary course of affairs, from the weight 
 of incompetent or unfaithful public servants. Under the 
 present Constitution, a judge can only be removed by the 
 difficult and unpleasant process of impeachment, or of address. 
 Such remedies will be resorted to only in the most aggravated 
 cases." But do they venture to assert, that the people of this 
 Commonwealth have ever been oppressed by the weight of 
 incompetent or unfaithful judges? Or that there has ever 
 been a case, less than the most aggravated, in which impeach- 
 ment or address has not been resorted to, but in which a re- 
 moval would have been desirable, or has ever been desired ? 
 Or do they mean that this statement of the reason for the 
 future provision which they make shall be taken by the peo- 
 ple as an insinuation, that there have been, in the past, incom- 
 petent and unfaithful judges, who have been left upon the 
 bench, because impeachment and address are difficult and 
 unpleasant processes ? If such is their insinuation, the whole 
 people of the Commonwealth, who are neither demagogues 
 nor believers in demagogues, will rise up to repel it, alike from 
 those who have received their appointments from one Execu- 
 tive, and from those who have received them from another. 
 If such is the insinuation of the Address, there never was a 
 more false and injurious imputation cast upon any set of 
 magistrates, since judicature has been known among men. 
 The Judiciary of Massachusetts, from the day on which she 
 became an independent State to the present hour, has been 
 as able, as upright, as much respected, and as respectable, as 
 any judiciary in any part of the civilized world ; and the case 
 has rarely, if ever, been known among them, of a judge re- 
 maining upon the bench after he had ceased to be competent, 
 or had become unfaithful. It may be doubted, whether such 
 a case is within the memory of any man now living. But 
 whether such an insinuation was intended to be covertly made, 
 or not, it is manifest, that the Convention, by not applying 
 the change to the present Judges, did not dare to make it 
 openly, and did not venture to assert that experience requires 
 4
 
 38 JUDICIARY. 
 
 the change. The sole reason why they did not apply to the 
 present Judges a change which they say is necessary in the 
 future, was because they were afraid to encounter the odium 
 of a fair, practical application of their own measure, and 
 thought to get it in edgewise. 
 
 But let us now examine the doctrine of the Convention, 
 that it is expedient, that the judges should hold their offices 
 for ten years only. It cannot be pretended, that a judge who 
 sits upon the bench, and passes upon questions affecting the 
 life, liberty, property, and character of his fellow-citizens, is in 
 a state which can be correctly described as independent, if, at 
 the expiration of ten years, he is to look for a reappointment 
 to the Governor, who, besides being the Executive of the 
 Commonwealth, is always the head of a political party. The 
 Convention, therefore, are in favor of a dependent, and not an 
 independent judiciary. 
 
 Now, in opposition to their theory, I undertake to affirm, that 
 the true democratic doctrine that which looks to the safety 
 and security of the rights of the humblest individual, and provides 
 for them in an impartial administration of the laws is "an 
 independent judiciary." In the first place, all men will agree, 
 who are not blinded by party prejudice, that, unless the judiciary 
 is independent, the judicial office will not in general be sought 
 or accepted by men of the highest ability, combined with the 
 highest character. Men of real talent can do better than ac- 
 cept a place which they can hold for the short period of ten 
 years only, and men of real character will not place themselves 
 in a position of dependence upon the chances and changes of 
 political parties. The judicial office should be made so de- 
 sirable as to command the services of those most fitted to dis- 
 charge its duties ; and, among the qualifications for the dis- 
 charge of those duties, character and talent are two great 
 essentials. There are many and obvious reasons, why the 
 most eminent members of the legal profession should be at- 
 tracted to the Bench, as a matter of public policy. One reason 
 is, that the Bench ought always to maintain a supremacy over, 
 and a superiority to, the Bar. I believe that all thinking men, 
 who have much considered this subject, will agree in regarding 
 this as essential. If the Bar predominate over the Bench in learn-
 
 JUDICIARY. 39 
 
 ing, quickness of apprehension, clearness and soundness of 
 judgment, and force of character, justice cannot be well ad- 
 ministered. The tendency among us, apart from the influence 
 which our constitutional provisions have hitherto exerted, is 
 to predominance by the Bar, from numbers, from social posi- 
 tion, and from influence in other branches of the government. 
 The people need to be protected from this tendency ; and this 
 protection is to be found in such a tenure of the judicial office, 
 as will induce men to accept it, who are individually superior 
 in point of ability, learning, and weight of character, to most 
 of the advocates who practise before them. 
 
 In presenting to you this consideration, I am not unmindful 
 that the Bar of Massachusetts are, in general, deserving of 
 great credit for the aid which they have always given to the 
 Court in the administration of the law. As a body of men, 
 whose profession and duty it is to advocate the rights of oth- 
 ers, I believe the Bar of this Commonwealth have generally 
 aimed to discharge their duties according to their official oaths, 
 with all due fidelity to the Court, as well as to their clients ; 
 and I should be the last person in the world, to be willing to 
 depreciate the services which they have rendered, and are daily 
 rendering, in the administration of justice. Without a learn- 
 ed, zealous, and able Bar, no Court can discharge its duties 
 satisfactorily to itself, and to the true advantage of the public. 
 But it should never be forgotten in considering this great sub- 
 ject of the relations of the Court to the Bar, that it is the office 
 of an advocate to present one side and one view of a subject, 
 and to enforce that side with all the talent, learning, zeal, and 
 address that he can employ in the service of his client. This 
 is the only mode in which the conflicting rights and interests 
 of men can be judicially investigated, and the truth, whether 
 of law or fact, be finally elicited in the process. It is, there- 
 fore, obvious, that the office of JUDGMENT, which is to extract 
 from the animated and highly colored discussions of the Bar 
 the elements of a wise, true, and just decision, ought to be dis- 
 charged by a mind equal at least, if not superior, in power of 
 research, in grasp and force of intellect, and in all the habits 
 of a trained analysis, to those whose business it is to present 
 a single view of the subject. Have you ever seen a feeble
 
 40 JUDICIARY. 
 
 judge, sitting in the trial of a cause conducted by really great 
 and superior men at the Bar? If you have, you have, to 
 some extent, witnessed the effect and the consequences of that 
 inferiority, which I am now contending ought not to be found 
 upon the bench. And if to an intellectual inferiority you add 
 an inferiority in point of character; if, besides, you place the 
 judge upon the bench in a position where he must not only 
 succumb to the superior strength of the advocates before him, 
 but must find in some of those advocates men of political 
 power and influence, and must be constantly reminded, by 
 their presence, of the political bearing of the questions before 
 him, and be constantly alive to the effect on his own position 
 and prospects of the decision which he is to pronounce, 
 you will be able to form some idea of the kind of judiciary 
 you will be likely to have, when your judges are commissioned 
 for ten years, and are to look for a renewal of their commis- 
 sions to the success of a political party. 
 
 But the subject is too important, and too full of interest, to 
 be disposed of in a single essay. I shall resume it in a future 
 paper. 
 
 PHOCION. 
 
 No. VI. AT* 
 
 THE JUDICIARY. 
 
 IN the last paper, I called your attention to some consider- 
 ations, which show that the judicial office ought to be made 
 so desirable as to command the services of the ablest and best 
 members of the legal profession ; and that it is not made so, 
 when the judges are commissioned for the short period of ten 
 years, and are obliged to look for a renewal of their commis- 
 sions to the success of a political party. Those considera- 
 tions referred to the internal relations of the State to its own 
 citizens, in the impartial, pure, wise, and able administration 
 of justice. I now ask you to look at this subject in its con- 
 nection with the relation of the State to the Union.
 
 JUDICIARY. 41 
 
 The late Convention seem to have done every thing that 
 was in their power, to reduce the offices of the State, and 
 especially the judicial offices, below the ambition of men of 
 high ability and character, and to make them desirable only 
 to a class of men, who cannot bring to the service of the 
 Commonwealth the same degree of talent and capacity, which 
 the government of the United States is able to command. 
 How miserable and short-sighted a policy this is, which has a 
 tendency to drive the best men out of the service of a State 
 into the service of the United States, we have lately seen ex- 
 emplified in the State of Ohio, the third State in the Union 
 in point of population, whose Governor has just resigned 
 his office, in order to take a consulship abroad. Such a pol- 
 icy is suicidal to the best interests of a State, to its proper 
 influence in the Union, and to the duties which it owes to the 
 complex relations of this confederacy. It is in the highest 
 degree important to the security of the Union, that the just 
 powers and full influence of the several States, in their re- 
 spective spheres, should be maintained. The tendency is, 
 and almost always has been, since the adoption of the Con- 
 stitution of the United States, to a preponderance of the 
 power and influence of the general government over those of 
 the States, without the exercise of any thing more than its 
 proper constitutional functions. 
 
 From the growth of the country, from the increased mag- 
 nitude of the objects with which the general government is 
 concerned, and from the consequently increasing patronage 
 that belongs to it, the legitimate constitutional power and 
 influence of the United States increase much more rapidly 
 than those of the States. Our political system is so consti- 
 tuted, that, unless the States are careful to preserve their legit- 
 imate influence, and to counteract this tendency of the gen- 
 eral government to outstrip them in energy and force, the bal- 
 ance of the Union must be seriously deranged. At the time 
 when the Constitution of the United States was formed, it 
 was not only admitted that the State governments must be 
 preserved, but it was perceived to be necessary, in order that 
 they should be preserved, that they should retain and continue 
 to exercise all the powers which were not necessary to be 
 4*
 
 42 JUDICIARY. 
 
 granted to the general government for the accomplishment of 
 the objects for which it was to be instituted. The powers 
 and functions of the States, as they were actually left after 
 the adoption of the Federal Constitution, if suffered to fall 
 into decay, or if not exercised with proper energy and vitality, 
 must, in all conflicts with the powers of the general govern- 
 ment, sink beneath the superior strength and natural suprem- 
 acy of the latter. Such a state of things would as surely 
 lead to a dissolution of the Union, as a violent and unconsti- 
 tutional assertion and exercise of the doctrine of State rights ; 
 for, so soon as the just powers of the States in their constitu- 
 tional spheres fail to be properly and duly exercised, so soon 
 will the power of the Union begin to be irksome, and finally 
 become intolerable. 
 
 Now, there is no department of a State government more 
 necessary, or more efficient, in the assertion and maintenance 
 of the legitimate constitutional rights and powers of the State, 
 than its Judiciary. It is the Judiciary of a State, for example, 
 that is to construe and declare the constitutional law of that 
 State, and the rights of its citizens and inhabitants under that 
 law. It is for the Judiciary of a State to declare what is the 
 law which determines the rights of property and of persons 
 within that State ; to determine whether the legislation of the 
 State, which regulates those rights, is in conformity with 
 the provisions of its Constitution ; and these adjudications of 
 a State Judiciary are and must be received and recognized as 
 the law of that State, in the tribunals of the United States. 
 What then can there be more important to the welfare of the 
 people of a State, than to have its Judiciary who are to 
 declare the law of the State, upon the rights of persons and 
 of property within that State, not only for the purposes of ad- 
 judication in her own courts, but for the purposes of adjudi- 
 cation in the Federal tribunals, when those rights are brought 
 into question there composed of men of first-rate ability, 
 influence, and weight ? When it is recollected, that, in all 
 cases of a supposed conflict between the law of a State and 
 the provisions of the Constitution and laws of the United 
 States, and in all controversies between the citizens of one 
 State and those of another, the Federal Judiciary is empowered
 
 JUDICIARY. 43 
 
 to draw to itself the discussion and adjudication of all ques- 
 tions which may arise between individuals, (subject to the 
 single qualification that it is to look to the Judiciary of the 
 State for the construction and declaration of the State law,) it 
 is impossible to overstate the importance of having the very 
 best minds employed in the duty of ascertaining and declar- 
 ing the rules which determine the rights of property and per- 
 son under the State law. If the declaration and maintenance 
 of those rules is left in the hands of inferior men ; if mistakes 
 are committed ; if violations of the sound principles of juris- 
 prudence creep into the administration of the law of a State, 
 as it is declared by its Judiciary, the mischief is not and 
 cannot be confined to the adjudications of its own courts, but 
 it infects also all the fountains of justice, whether they flow 
 in the domains of the State itself, or in those of the Federal 
 Union. Certainly, then, it cannot be pretended that the 
 judges of a State ought to be or can with safety and pro- 
 priety be allowed to be any thing less than men of the 
 highest order of talents, learning, and character that can be 
 found in the legal profession within her limits. 
 
 But what do our late Convention propose to do ? It is 
 difficult enough now for any Governor of Massachusetts to 
 find men, who are fit to be judges, and who are willing to 
 leave the lucrative practice which that fitness has always com- 
 manded for them, to take a seat upon the bench. If the 
 secrets of the Executive embarrassments for the last twenty 
 years or more were to be laid before the people, I apprehend 
 that it would be found that there have been few applications 
 for judicial appointments by the men most to be desired, and 
 that the motive of public duty has had to be strongly appealed 
 to, in order to obtain such men. But the Convention, as if 
 they desired to make this motive still less available than 
 it is now, propose to take from the Executive the power of 
 offering to any suitable man a seat upon the bench during 
 good behavior, and to confine the range of choice to men who 
 will take that seat for ten years, with the chance of bein- dis- 
 missed to private life at the end of that term, and forced to 
 earn their livelihood by a practice which has been absorbed 
 by others in the keen competitions of the Bar. And what
 
 44 JUDICIARY. 
 
 compensation or relief for this unwise and imprudent change 
 do they offer to the people ? Why, nothing more than the 
 confidence which they feel, that the judges who are found 
 really competent and faithful will be retained upon the bench, 
 by a renewal of their commission. Even if men, who are 
 really fit for the office, are likely to be found upon the bench 
 under this system, men willing to take a seat with a com- 
 mission for ten years by the side of those who hold their com- 
 missions during good behavior, I doubt if the confidence 
 of the Convention in their reappointment is not entirely mis- 
 placed and delusive. But whether it be so or not, that confi- 
 dence is no adequate security for the great public interests at 
 stake. 
 
 Let us see what the grounds of this confidence are, as they 
 are stated in the following passage of the Address of the Con- 
 vention : 
 
 " In a free government, the people should be relieved in a reasona- 
 ble time, and by the ordinary course of affairs, from the weight of 
 incompetent or unfaithful public servants. Under the present Consti- 
 tution, a judge can only be removed by the difficult and unpleasant 
 process of impeachment or of address. Such remedies will be resorted 
 to only in the most aggravated cases. 
 
 " Under the proposed system, we have no apprehension but that 
 faithful and competent judges will be retained in the public service, 
 while those whose places can be better filled by other men will retire 
 to private life, without violence or ungracious circumstances, and 
 scarcely with observation." 
 
 The Convention then propose to adopt, in place of a removal 
 of an incompetent or unfaithful judge by impeachment or ad- 
 dress, a system of removal by the Executive at the expiration 
 of ten years, " without violence or ungracious circumstances, 
 and scarcely with observation" " having no apprehension but 
 that faithful and competent judges will be retained in the pub- 
 lic service" by the Executive. This plan of making judges 
 retire to private life without observation, at the pleasure of 
 the Executive, and the amusing dread of the " ungracious cir- 
 cumstances " of an impeachment evinced by the writers of the 
 Address, remind me strongly of a letter which I once saw in 
 France, in the hands of a gentleman curious in autographs,
 
 JUDICIARY. 45 
 
 written by a revolutionary functionary during the Reign of 
 Terror to the executioner, at the time when the guillotine 
 first began to work. " Citizen," said the letter, " I am pained 
 to inform you that the public morals were yesterday much 
 shocked by the unnecessary stains of blood upon the pave- 
 ment ; we request you, in future, to make use of sawdust at 
 all executions." 
 
 But to return seriously to a serious subject; I must say, 
 that, in my humble judgment, the public interests require more 
 security that competent and faithful judges shall be retained 
 in office, than can be afforded by any degree of confidence 
 which anybody may feel in the right action of the Governor, 
 whoever he may be. The best disposed Executive, who may 
 wish to discharge his duties conscientiously, may not always 
 be able to do right, in the matter of reappointing a judge, 
 against the clamors of party and the claims of partisans. The 
 argument comes, or may come, in such a plausible shape, 
 that the incumbent has enjoyed the full time contemplated by 
 the Constitution, and that a faithful and distinguished member 
 of the Governor's own party now wishes for his turn in the 
 office, that it may be very difficult for all Governors to 
 resist it, and quite impossible for some. It ought not to be 
 left to any Executive to say whether a judge shall be removed 
 from office, or, what is in effect the same thing, shall be 
 quietly dropped at the end of a short commission, " scarcely 
 with observation." It ought not to be so; first, because it 
 gives the Executive a power over the Judiciary, of a dangerous 
 character, which may be and will be wielded to political ends. 
 The theory of our government and the theory of this very 
 Constitution are, that no department of the government ought 
 to have such a power over any other department. Secondly, 
 the Executive ought not to have this power, because there is 
 no form of trial of the fact of competency or faithfulness pro- 
 vided. All is to pass in the secret recesses of the Executive 
 conscience, and he is to be practically irresponsible for a de- 
 cision, which he makes without public inquiry, or any mode 
 of public investigation into the great and solemn issue of the 
 competency and faithfulness of a judge. In the third place, 
 it ought not to be so, because an error in judgment, or a
 
 46 JUDICIARY. 
 
 biased and prejudiced decision of the Executive, would in- 
 flict an irreparable injury on the public, in the loss of a 
 magistrate who had had ten years' experience in the duties of 
 the office, and whose usefulness may, and probably will, in- 
 crease with every year through which he remains in it. 
 
 On the other hand, the value and importance of a removal 
 by address or impeachment, in a case of real incompetency or 
 unfaithfulness, cannot be too highly appreciated. It is the 
 only mode of removing a judge, or taking him out of the 
 public service, that is consistent with the independence of the 
 Judiciary and the real interests of the people. It is so, 
 first, because it keeps the power of the different departments 
 of the government distinct, and prevents either of the two 
 others from exercising political control over the Judiciary. It 
 is true, that a judge may be impeached, or his removal may 
 be attempted by address, from political motives ; but these 
 motives must be brought to the test and stand the trial of a 
 public investigation into the charges made, upon the oaths of 
 witnesses and the public responsibility of all who have any 
 function to discharge in the process. And therefore I say, in 
 the second place, that a removal by address or impeachment 
 is vastly to be preferred, because it requires a formal public 
 investigation into the facts of competency and fidelity. The 
 great maxim, that "no man should be condemned unheard, 1 ' 
 is in this case important, not only to the rights of an indi- 
 vidual, whose reputation and usefulness may be involved, but 
 it is equally important to the public interests, because the 
 public ought not to be deprived of the services of a judge, 
 without a careful, open, public, and responsible finding of the 
 fact, that he is unfit for the station which he fills. Place your 
 judges in any other position, and you may be deprived of 
 their services, at the instigation of a demagogue, through the 
 malice or the selfishness of party, or by the machinations of 
 some powerful individual, whose schemes of private rapacity, 
 injustice, or oppression it may have been their duty to crush. 
 In the third place, a removal by impeachment or address is a 
 far better security for good conduct in the judges, if they are 
 men fit for the position, than any such plan of dropping them 
 out of office " without observation " can ever become. What
 
 JUDICIARY. 47 
 
 are called, in the sleek delicacy of this Address, the " ungra- 
 cious circumstances " of an impeachment, are the best possi- 
 ble security that the public can have for the honesty, impar- 
 tiality, and purity of a judge. The functions of a judge are 
 discharged in public, before the eyes of all men, and they in- 
 volve the dearest and most important interests of the State 
 and of every one of its inhabitants. And that he may walk 
 uprightly in his high function, and discharge it with the best 
 exertion of every faculty that God has given him, and with a 
 conscience void of all offence, there is no security, which men 
 of honor and uprightness can be subjected to, like the sanc- 
 tions of that form of public trial and public degradation, which 
 ought to follow upon any dereliction of duty or any substan- 
 tiated charge of incompetency. 
 
 But I am admonished by the length of this paper that the 
 subject, which I have not yet exhausted, if I am capable of 
 exhausting a question of such magnitude and importance, 
 ought to be resumed at a future opportunity. 
 
 PHOCION. 
 
 No. VII. 
 
 THE JUDICIARY. 
 
 IF the designs of men may fairly be inferred from the 
 schemes which they set on foot, and from the arguments 
 which they employ to secure their establishment, then the 
 men who governed the proceedings and shaped the results of 
 the late Convention may justly be charged with an attempt 
 to bend the institutions of the Commonwealth to their own 
 political, party purposes. With regard to the Judiciary, they 
 have devised a plan full of danger to the best interests of the 
 people, and subversive of all the sound maxims of constitu- 
 tional government. This plan is entirely different, in its 
 features and effects, from the one that was generally expected 
 of them. Most persons, I suppose, anticipated that the lead-
 
 48 JUDICIARY. 
 
 ers of the Coalition party would be in favor of making the 
 Judiciary elective by the people. In this anticipation, it ap- 
 pears, more credit for fairness was given to the majority of the 
 Convention than they deserved. The plan for an elective 
 Judiciary involves more confidence in the people, than the 
 majority appear to have entertained ; and it involves, also, 
 comparatively, too little opportunity for that political control 
 over the Judiciary, at which they seem to have aimed, and for 
 which they have made ample provision. The Constitution, 
 which they undertook to remodel, provides that the judges 
 shall be appointed by the Executive, but shall be commissioned 
 to hold their offices during good behavior. This tenure of 
 office may be regarded as essential to that degree and kind of 
 independence of the Judiciary, which the fundamental max- 
 ims of our government affirm to be the best security for the 
 rights of the citizen. It is true, that a tenure of office for a 
 term of years, if that term be so long as to expire at about the 
 average age at which vacancies may occur from natural 
 causes, might be consistent with a proper degree of independ- 
 ence of Executive control, under a system of Executive ap- 
 pointments. But the Convention, in total disregard of the 
 necessity of preventing an improper control over the Judiciary, 
 have adopted a term of ten years, which is just about one 
 third of the average length of time for which men placed upon 
 the bench, at the age of forty or under, may be expected to 
 continue to be useful in the public service. 
 
 But this is not all ; nor is it by any means the worst feature 
 of the proposed change. I have not looked into the Consti- 
 tutions of the different States of the Union, which limit their 
 judges to a term of years ; and I think it very immaterial 
 whether there is or is not a single State where a term so 
 short as ten years has been adopted, leaving the appointment, 
 with the Executive. But I hazard nothing in saying, that 
 there is no State in this Union, where a term of years has 
 been adopted, in which some careful provision has not been 
 made for obviating the consequences of having a majority of 
 the Court go out of office in any one year, by fixing different 
 terms for those first appointed, and so regulating their com- 
 missions, that the Executive cannot have the power of ap-
 
 JUDICIARY. 49 
 
 pointing to a majority of vacancies in a single year. The 
 Constitution, which we are now asked to adopt, leaves this 
 wholly to chance. Should it be adopted, and should the ac- 
 cident happen that a majority of the judges were to die within 
 a year, then once in every ten years the Governor would have 
 the appointment of a majority, for all time. But this Constitu- 
 tion declares the principle, that the three powers of the govern- 
 ment ought to be kept separate ; and yet if it is adopted, with 
 this feature in it, and it must be adopted with this feature, if 
 at all, there is no security that the whole judicial power is not 
 permanently put under the Executive. Now, if you will take 
 the trouble to look back to one of my former articles on the 
 representative system, you will see that, under the scheme 
 devised by the Convention, the Governor, who is to have this 
 power over the Judiciary, by which, in every tenth year, he 
 may dismiss a majority of them from the bench or retain them 
 there according to his own pleasure, and, upon motives and 
 reasons for which he is to account to nobody, cause them to 
 retire to private life, if he sees fit, " scarcely with observation," 
 may himself owe his poli-tical elevation to this power to 
 the votes of a minority of the people. If you will look into 
 the proposed representative system, you will see that it may 
 be demonstrated, that the political character of the Governor 
 may be determined by the votes of a majority of the House 
 of Representatives, who will be elected by a minority of the 
 people; and I need not say, that if the commissions of a ma- 
 jority of the judges should expire in such a year, and they 
 were not of the political party of the Governor, the chances 
 are, that they would retire to private life " without violence 
 or ungracious circumstances, and scarcely with observation." 
 Few men, who are accustomed to reflect upon any thing, 
 can doubt that there is such a thing in political science as 
 truth. That there is a right and a wrong in politics ; that the 
 relations between the different institutions by which human 
 society is governed and protected are not all arbitrary ; that 
 liberty, safety, and the public good depend upon the recog- 
 nition and maintenance of certain principles, and cannot flour- 
 ish without them, are truths as certain as any thing in 
 mathematical science. And there are few people in the world 
 5
 
 50 JUDICIARY. 
 
 who have done more for the discovery and practical exhibition 
 of these principles, in their application to free constitutional 
 governments, than the people of this Commonwealth of Mas- 
 sachusetts. Our early Colonial history ; our contests with the 
 power that undertook to deprive us of the Charter ; our great 
 Revolutionary discussions; and, finally, our new and admirably 
 contrived institutions, by which we undertook to substitute, and 
 did successfully substitute, the authority of the people for that 
 of the crown, in the framing of which men who had deeply 
 studied all political science were concerned ; prove the ad- 
 vances that we have made, and the happy results that we 
 have achieved, not merely in the business of se/f-government, 
 but in the great art of all constitutional government. Among 
 the great truths, for which, in their application to purely 
 popular governments, we may justly claim the merit of dis- 
 covery, this doctrine of the independence of the judiciary in 
 which I include its freedom from political control is one of 
 the most conspicuous and important. It is of the utmost 
 consequence that we should bring home to ourselves, as a 
 practical truth, that this doctrine is not an antiquated preju- 
 dice, that has served its turn in its day, and may now give 
 place to looser arrangements. It cannot give place to any 
 thing, without injury to the best interests of society, for the 
 reason, that -it is founded in truths that are as eternal as so- 
 ciety itself, and as indestructible as the social necessities of 
 man. 
 
 Indeed, if the tendencies and developments of society among 
 us prove any thing, they prove that the necessity for an inde- 
 pendent judiciary, instead of having become an old prejudice, 
 to be exploded by new theories as society advances, becomes 
 every day more and more stringent; that not only is its 
 position in our political system as important now as it was 
 when the foundations of our civil polity were laid, but that its 
 importance is gathering every day fresh illustration and newer 
 force, by what is every day taking place around us and in the 
 midst of us. 
 
 In the first place, all men must perceive, on a moment's re- 
 flection, that, in a popular government, the judiciary is, for 
 all the purposes of self-defence, the weakest of all the depart-
 
 JUDICIARY. 5t 
 
 ments into which government is divided. It has no political 
 relations to the people, or to the other departments. It has 
 no patronage to dispense, and consequently it cannot reward 
 its friends, nor punish its foes. It knows neither friend nor 
 foe. It is employed, unceasingly, in declaring the law and in 
 administering justice, without respect of person, and without 
 regard to consequences. In all well regulated communities, 
 if the judges are attacked, they cannot descend into the arena 
 to defend their conduct, or to vindicate their judgment. When 
 they have spoken, the law has spoken ; when they have pro- 
 nounced, society has uttered its command ; and neither the 
 dignity of the one, nor that of the other, can be dragged into 
 a strife with the convicted criminal, or the disappointed suitor, 
 or the baffled politician, their friends, patrons, or supporters. 
 Men may assail them ; the press may libel them ; other 
 branches of the government may seek to overwhelm them ; 
 but through all, and in the midst of all, society expects to see 
 them turn neither to the right hand nor to the left, and re- 
 quires them to give their days to their great duties, and to 
 consume their midnight oil in the investigations which those 
 duties involve. 
 
 Now, is not this all just as true to-day as it was seventy 
 years ago ? Nay, as the community becomes more and more 
 thronged ; as the relations of property and of persons become 
 more and more complicated ; and as the subjects of judicial 
 controversies become more and more entangled with those 
 questions of constitutional law which are peculiar to our sys- 
 tems of government, and which connect themselves collater- 
 ally .with all our politics, does not the necessity, the indispen- 
 sable necessity, for an impartial judiciary become more and 
 more manifest? As the strife between political parties be- 
 comes closer, and the political character of the executive and 
 legislative departments is determined by sharp contests, 
 which alternately elevate and depress those who struggle for 
 political power, is it not more and more important that the 
 judiciary should be so completely removed from political con- 
 trol, as to be out of the reach of that ambition which may be 
 tempted, in its extremities, to turn it to its own purposes ? 
 As the majesty and dignity of the law become more and
 
 52 JUDICIARY. 
 
 more important to society, does it not become more essential 
 that the judiciary should preserve that position of digni- 
 fied reserve, which deprives it of the power of self-defence 
 against external attacks, and really makes it, in every polit- 
 ical sense, the weakest department in the government? 
 
 There is scarcely an honest man in the community, unless 
 he has been led away by some theory, who will not answer 
 these questions affirmatively. Let me then direct your atten- 
 tion to one of those tendencies, which has attained a mon- 
 strous development in our own day, by which the security 
 and good order of society are seriously menaced. I refer to 
 the frequency and the ferocity with which judges are attacked 
 for their decisions, by those who are the losers in a political, 
 and sometimes even in a pecuniary object. "Who has not 
 seen the most eminent magistrates in the land assailed, their 
 characters and motives and names and persons held up to 
 ridicule, to hatred, and contempt, because, of some decision 
 involving some of the topics of the day ? It has now come 
 to be a common, almost a certain occurrence, that when a 
 decision of a court of justice is made, which crosses the path 
 or disappoints the purposes of certain agitators, it is instantly 
 followed by an attack upon the court ; and there has been 
 nothing in the history of libels which has exceeded these 
 attacks in malignity, energy, and fury. And this warfare 
 against the ministers of the law has not been confined to oc- 
 casions involving the plans or feelings of politicians or philan- 
 thropists. I have known a disappointed suitor, who had 
 money to lavish upon an unprincipled press, libel the whole 
 Federal Judiciary, for a decision involving nothing but a ques- 
 tion of property. 
 
 In a country where the press is free, where the passions 
 of men have unbounded expression in the field of political 
 discussion, these things cannot be prevented; and the sole 
 remedy is in the penalties with which the law visits libel and 
 slander. But this remedy, open to all other men, is practically 
 closed to judges. It is closed by the dignity of their office ; 
 by the moral necessity that they should leave their decisions 
 to vindicate themselves, and their characters to the protection 
 of the virtuous and well-disposed ; and by the impossibility
 
 QUALIFICATIONS OF VOTERS. 53 
 
 of pursuing the libeller in their own courts. Against this 
 enormous evil, however, they cannot stand, if their tenure of 
 office exposes them to the slightest political control. Nothing 
 can secure them against the influence of the demagogue, or 
 the weakness or wickedness of those who profit by the dema- 
 gogue's agitations, except a position where they are above all 
 the elements of party or personal strife, and where they are 
 to feel no responsibility, save to that public trial, which is to 
 remove them from the bench, upon a public conviction of 
 incompetency or unfaithfulness. 
 
 PHOCION. 
 
 No. VIII. 
 
 QUALIFICATIONS OF VOTERS. 
 
 IT has long been the policy of this Commonwealth to ex- 
 tend the right of suffrage to all males of the age of twenty- 
 one years and upwards (except paupers and persons under 
 guardianship) who have resided in the State for one year, and 
 in the town where the vote is offered for six months, and who 
 have paid a poll-tax of $ 1.50 at any time within two years 
 previous to the time of voting. A great change is proposed 
 by the Convention, without assigning a single reason for it ; 
 namely, the abolition of the tax qualification. Like many of 
 the other changes proposed, this change is commended to the 
 people by the Address, with an insinuation of what is not 
 true. The tax qualification is represented as a property qual- 
 ification, and the proposed change is represented as only an- 
 other step in a reform long since begun, and now proper to be 
 completed. 
 
 " Under the original Constitution," says the Address, " voters and 
 
 public officers were required to possess property qualifications. These 
 
 have heretofore been removed in part, and we now recommend the 
 
 entire abolition of the property qualification in the voter for all na- 
 
 5*
 
 54 QUALIFICATIONS OF VOTERS. 
 
 tional and all State officers mentioned in the Constitution. The obli- 
 gations of citizens to contribute to the public expenses by assessment 
 of taxes are not in any degree changed." 
 
 There is so great an amount of disingenuousness in this 
 paragraph, that it is difficult to allow it to pass without the 
 imputation of dishonesty. An uninformed man might read 
 it, and be led by it to suppose, that the possession of some 
 amount of property is now, in this Commonwealth, a pre- 
 requisite to the right of voting, and that the Convention have 
 undertaken to remove this qualification, as a final step in the 
 extension of the right of suffrage, which has been gradually 
 taking place, until nothing but this remnant of former restric- 
 tions remained to be removed. But on looking into the pres- 
 ent Constitution and laws of the Commonwealth, he would 
 find, that there is no property qualification whatever for voters, 
 and that a tax qualification only is required, which is so regu- 
 lated as to be within the means of any man who can work ; 
 and on looking into the proposed Constitution, he finds that 
 what is called, with such high-sounding phrase, "the entire 
 abolition of the property qualification," is the removal of the 
 obligation to pay a poll-tax, which cannot by law exceed nine 
 shillings, New England currency, at some time within two 
 years previous to voting. 
 
 The qualification of paying a poll-tax is in no sense a 
 property qualification. It is an abuse of terms, so to describe 
 it. Such a tax can be paid, and is paid, by men who possess 
 no property whatever, which the law does not exempt from 
 taxation. It is not assessed upon property. It does not pre- 
 suppose the possession of property. It is assessed upon the 
 individual, rich and poor alike, as his just contribution for the 
 protection of his person, which the law and the government 
 afford to him. 
 
 When a government extends the right of suffrage to all 
 persons of a certain age, who have paid such a tax, it prac- 
 tically gives the right to everybody not a pauper ; for, among 
 the able-bodied poor, and among all who maintain themselves 
 by labor of all descriptions, there are very few persons indeed 
 who cannot pay a dollar and a half in two years, or seventy-
 
 QUALIFICATIONS OF VOTERS. 55 
 
 five cents in a year, as their contribution to the expenses of a 
 government which protects their lives, liberties, and labor. If 
 there is now and then a rare case of a man, not in the poor- 
 house, who really cannot pay his poll-tax without suffering, 
 it is so rare as to be practically of no moment in the arrange- 
 ments of the suffrage of the State. The question, therefore, 
 whether it is proper to remove this qualification, is a question 
 of general policy, composed of two elements, one of which 
 has reference to the public good, or the interests of the State, 
 and the other concerns the good of the individual, in whose 
 favor the removal of the qualification may be supposed to 
 operate. Let us examine each of these elements separately ; 
 and first, let us look at the interests of the State. 
 
 That there must be some qualifications of voters, that 
 suffrage in this Commonwealth cannot be absolutely univer- 
 sal, and so completely unrestrained as to admit of the impor- 
 tation of voters into the State for the purposes of an election, 
 and of all the other frauds which an unguarded suffrage en- 
 courages and allows, is a settled point in our public policy. 
 No convention and no number of conventions can make the 
 people of Massachusetts consent to the abolition of all quali- 
 fications. Upon this point, the experience or example of other 
 States is of value to us only as a warning. It may suit the 
 condition or policy of some States to have universal suffrage. 
 But what is done in one State of this Union is not necessa- 
 rily a rule for any other State. The genius, the habits, the 
 institutions, of every State are peculiar to itself; and it is one 
 of the peculiarities and blessings of our Federal Republic, 
 that it admits of a union for common purposes between States 
 of different institutions, different habits and customs, and 
 whose populations have had a very different history and 
 training, from the first settlement, and differ widely in their 
 present condition. In this matter of suffrage, the people of 
 Massachusetts always have required, and always will require, 
 some qualification, for the reason, that it is contrary to their 
 settled notions of the fitness of things, in the management of 
 their government, besides being wholly unnecessary, that 
 suffrage should be thrown open to everybody without re- 
 straint. This conviction is due partly to ancient habits, but
 
 56 QUALIFICATIONS OF VOTERS. 
 
 mainly to the general and enlightened perception of the im- 
 propriety of admitting to a share in the government of such 
 a State as Massachusetts, those who are not qualified to 
 make her laws or to select her rulers. It is a conviction 
 which no man and no party could change, if it were at- 
 tempted. 
 
 But along with it, there has been, and still is, another con- 
 viction, equally strong ; and this is, that the qualifications 
 ought to be so few and so light, as to admit to a share in the 
 political power all persons who can reasonably be presumed 
 to be fit to exercise it We have supposed, hitherto, that we 
 have attained the just medium, by requiring a certain age ; a 
 brief period of residence outside of the almshouse ; and the 
 payment of a very small assessment towards the public ex- 
 penses. The question is, whether one of these qualifications 
 can be abolished with any more propriety than the others. 
 
 The Convention do not propose to remove the exception 
 against paupers. But why not? Why not open the poor- 
 houses, and admit the pauper to vote, as well as the man 
 who pays no poll-tax ? Both are equally interested in hav- 
 ing a good government. One is a charge to the government, 
 the other maintains himself; but neither of them contributes 
 any thing to the support of the government, unless the labor 
 of the pauper, which the government appropriates to itself, is 
 to be considered as his contribution, in which case he has the 
 stronger claim of the two. Now, what is the reason for ex- 
 cluding the pauper from voting ? It is, that, as a general rule, 
 a man who cannot maintain himself by his labor, in such a 
 community as Massachusetts, has not the mental and moral 
 qualifications which make him a fit depositary of political 
 power. But when you leave the almshouse, and come to a 
 class who stand nearest to the pauper, to a man who can- 
 not pay a poll-tax of $ 1.50 in two years, have you risen at 
 all in the scale of mental and moral qualifications for the ex- 
 ercise of the right of suffrage ? As a general rule there 
 may possibly be a rare exception you certainly have not. 
 As a general rule, there is no man, out of the poorhouse, in Mas- 
 sachusetts, who cannot pay this poll-tax and yet subsist, who 
 can be said to possess the proper mental and moral qualifica-
 
 QUALIFICATIONS OF VOTERS. 57 
 
 tions for a voter. The tax, it should be recollected, is not to 
 be regarded as a consideration paid in the purchase of the 
 right of voting. If the right rested upon purchase, the rich 
 man, who pays a large tax upon property, ought to have a 
 larger share of political power. The payment of the tax is 
 evidence of the possession of those qualities of intelligence, 
 prudence, and capacity, which fit a man to exercise political 
 power in a government of the people. 
 
 The qualifications of age and residence are to be regarded 
 in precisely the same light, as far as they go. There may be 
 a case of a man who is as fit for the right of suffrage at 
 twenty, as other men are at twenty-one. But the State de- 
 mands some evidence of fitness ; and, as the same rule must 
 be established for all, it selects the age at which a man is 
 deemed capable of taking care of his own affairs. Just so 
 with residence. There may be a case of a man who has re- 
 sided in the State only three months, who has as much knowl- 
 edge of and interest in her institutions, as he will have when 
 he has been here a year. But inasmuch as immigration into 
 the State is permitted, and is perfectly easy, the State thinks 
 proper to require some further evidence of fitness than the 
 age of the voter, and, inasmuch as the rule must be general, 
 it takes the period of a year's residence, in order to cover the 
 cases of immigrants. But these two sources of evidence are 
 not, as the State has hitherto considered, sufficient to cover 
 all cases, and to form a complete and safe general rule for all. 
 It has therefore required a third fact to be added, namely, that 
 the voter has so much mental and moral capacity as to be 
 able to pay a very small sum towards the public expenses. 
 This payment is deemed proof of the possession of that de- 
 gree of intelligence, capacity, and self-government, which 
 makes a man a fit depositary of political power. 
 
 Unless, therefore, you come to universal suffrage, and abol- 
 ish all qualification, there is no more propriety in dispensing 
 with one of the three positive qualifications heretofore re- 
 quired, than there would be in dispensing with either or both 
 of the others, or than there would be in abolishing the nega- 
 tive qualification, that the voter shall not be a pauper or a 
 person under guardianship. The Convention have not pro-
 
 58 QUALIFICATIONS OF VOTERS. 
 
 posed to touch more than one of these positive or negative 
 qualifications. But what they propose to do is, to dispense 
 with that one of the proofs of fitness and capacity for the ex- 
 ercise of the right of suffrage, which is necessary to make the 
 general rule complete and efficacious ; and they propose this 
 under the false pretence, that the change would be a removal 
 of a property qualification. Now, one of two courses must 
 be taken. The State must either determine that it will re- 
 quire no evidence of fitness in the voter, or it must adhere to 
 such evidence as really amounts to something like proof. 
 The age of twenty-one years proves only that the individual 
 has arrived at a period of life when the law deems him fit to 
 become his own master ; not that he is fit, even for that. 
 Residence in the State for a year proves only that the indi- 
 vidual is not a newly arrived stranger, ignorant of our laws, 
 and capable of judging soundly of our policy; not that he ts, 
 in point of fact, qualified to take a part in making our laws 
 or shaping our policy. But the payment of his assessed share 
 of the public burdens proves a capacity so to govern his 
 own affairs as to acquire the means of payment, and from 
 this capacity is inferred the possession of mental and moral 
 qualities, which, probably, make him fit to exercise the trust 
 involved in the elective franchise. I hold, therefore, that as 
 long as it shall continue to be the policy of the State to re- 
 quire any evidence of such fitness, the tax qualification, as we 
 have hitherto applied it, is both the most efficacious and the 
 least burdensome evidence that can be demanded. 
 
 With regard to the interests of the class who may be sup- 
 posed to be relieved by the removal of the tax qualification, I 
 doubt whether such relief would be a favor. Certainly it is 
 not one, that an enlightened and really benevolent statesman 
 would seek to confer. What is it that raises the labor of 
 Massachusetts above the labor of most other communities on 
 the globe ? What is it that puts the laborer among us upon 
 a footing of equality with the rich man, who rolls by him to 
 the polls in a coach ? Not solely the high wages that he can 
 command ; the education that he can have for himself or his 
 children ; or the quality of food or clothing that he can enjoy. 
 These are all great blessings of his condition. But there is
 
 QUALIFICATIONS OF VOTERS. 59 
 
 added to them likewise the great political right to be one of 
 the sovereigns, one of the governing class of society ; 
 and the tenure by which he holds this right is precisely the 
 same as that by which the richest man in the community 
 holds it, namely, the evidence by which he proves his capacity 
 to vote intelligently and honestly upon public affairs. Re- 
 quire no such evidence from him, and you do him a double 
 injury ; first, you take away from him a great stimulus to 
 exertion, prudence, thrift, and patriotic feeling, the only 
 stimulus the State can apply to him ; secondly, you degrade 
 him from the level on which he stands with the rich, by leav- 
 ing their fitness for political power to be inferred from their 
 wealth, and refusing to take his thrift, frugality, and cheerful 
 discharge of his social duties for proof that he is as fit for it 
 as they are. The dignity, the self-respect, and the moral in- 
 dependence of labor in this Commonwealth, you may depend 
 upon it, have an intimate connection with the mode in which 
 we have regulated the right of suffrage. For my part, if I 
 had the entire shaping of this right for a community of free- 
 men, I would give more for the qualities that are fostered by 
 such a system as ours has been, in those who have nothing 
 but their labor to depend upon, than for all that unrestricted 
 suffrage can do for them. The one policy elevates, the other 
 depresses them. The one recognizes them as moral and ac- 
 countable beings, whose political rights rest upon the same 
 foundation with those of the rich and prosperous ; the other 
 treats them as a horde, whose suffrages are to be solicited 
 by demagogues and bought by parties who care nothing 
 for their fitness to give an intelligent, or their fidelity and 
 caution to give an honest vote. Long, long may it be, 
 before the labor of Massachusetts is thus wounded by its 
 friends or by its enemies. 
 
 PHOCION.
 
 60 COALITION OF 1850. 
 
 No. IX. 
 
 MAJORITY AND PLURALITY ELECTIONS. 
 
 IN the winter of 1850-51, there being in this Common- 
 wealth no choice of Governor by the people, in consequence 
 of the state of parties, the choice devolved upon the Legisla- 
 ture ; and, besides the complete organization of the State 
 government, that body was then to choose a Senator in Con- 
 gress. The Legislature, as the people had been, was divided 
 into three parties, neither of which possessed a majority. Of 
 the distinctive principles or objects of these parties, as to 
 which of them was right, in my opinion, and which wrong, 
 which of them embraced the men most fit to be intrusted with 
 the government of the State, and the high Federal office then 
 to be filled, it is not my present purpose to speak. I wish 
 now to deal with historical facts ; facts which, unhappily, 
 can never be forgotten, as they never can be blotted out from 
 the history of Massachusetts. 
 
 Two of the political parties, which were struggling to obtain 
 possession of the State government, had, in the popular elec- 
 tion, nominated and voted for separate candidates for Gov- 
 ernor, upon entirely distinct and opposite political principles ; 
 but they had at the same time formed a coalition for the pur- 
 pose of electing as many members of both branches of the 
 Legislature as they could, by their joint action, in anticipation 
 of the state of things which was thus actually brought about. 
 The consequence was, a return to the Legislature of many 
 politicians, who cared little for the distinctive organizations to 
 which they nominally belonged, in comparison with the great 
 object of obtaining^ by some means or other, as many of the 
 offices that were to be filled as they could acquire. The Legis- 
 lature, thus composed, came together; and then ensued a 
 series of transactions, which every citizen of Massachusetts, 
 who has not been led astray by participation in or defence of 
 those proceedings, must always regard as deeply disgraceful, 
 dishonorable, and corrupt. Two caucuses of members of the
 
 COALITION OF 1850. 61 
 
 Legislature, possessing distinct political principles, and elected 
 by the people because of those professions, were then seen 
 trading for the offices of the State with each other. Votes 
 were promised and given, on one side, in consideration of 
 votes promised and given on the other. Office was balanced 
 against office, and dignity against dignity, until the places of 
 trust, which the people have created for the public good, and 
 intended should be filled with reference to it, were all parcelled 
 out to the entire and mutual satisfaction of the " contracting 
 parties." Into this great bargain for place, the high office of 
 an United States Senator was brought as a makeweight, and 
 was obtained by one faction as its pay for what it conceded to 
 the other. Whether the individual who obtained the office 
 fitly represented, or represented at all, the political sentiments 
 of a majority of the people of the State, was a consideration 
 to which no one gave the slightest heed. It was sufficient, 
 that the coalition of the two factions presented an opportunity 
 to make the terms which would secure the place, and that the 
 terms of the bargain were such as to insure the result. 
 
 If, now, there is such a person in Massachusetts as an intel- 
 ligent and reflecting man, who has no party feelings about this 
 transaction, or one who can lay them aside sufficiently to look 
 at.it in a true light, he can scarcely fail to see two things : 
 first, that such proceedings are essentially as corrupt as the 
 purchase of offices by means of a money consideration, or by 
 any thing else given for the votes necessary to secure them ; 
 and, secondly, that it is possible to make constitutional pro- 
 visions concerning the mode of organizing the State govern- 
 ment, which, instead of diminishing, will increase the facility 
 with which parties can enter into and complete such bargains. 
 It is not necessary to enlarge upon the* first point; the 
 second demands our serious consideration, now that a Con- 
 stitution is before us, which, for some reason, not stated, re- 
 quires a majority in some elections, and admits of only a plu- 
 rality in others. 
 
 It is obvious, that, if a majority of the popular vote were 
 
 not required for the election of a Governor, the election would 
 
 not be thrown into the Legislature, in any state of parties. 
 
 We had, until we found ourselves in the state of things 
 
 6
 
 62 MAJORITY AND PLURALITY. 
 
 brought about by the Coalition, escaped such demoralizing 
 scenes as were enacted in the Legislature of 1850 - 51, be- 
 cause the organization of the two branches, under the pro- 
 visions of the Constitution, brought into those bodies the 
 representatives of two parties only, who were so situated as to 
 be out of the reach of the temptation to trade away their 
 principles for political power. The election of Governor was 
 therefore thrown into the Legislature, without danger to the 
 interests or the honor of the State ; and as long as the political 
 condition of the State continued to be that of a people divided 
 into two distinct and well-defined parties, no serious mischief 
 or inconvenience could ensue from the rule, which carried the 
 election into the Legislature, on a failure to obtain a majority 
 of the popular vote. But when a third party came into the 
 field, and succeeded in electing a sufficient number of mem- 
 bers of both houses of the Legislature to enable them to hold 
 out the temptation to one of the other parties to unite with 
 them for the purpose and the sole purpose of obtaining 
 and sharing the offices of the State, this constitutional rule 
 became the efficacious instrument for the accomplishment of 
 the whole design. It brought the prize of the Governorship 
 within the grasp of such a coalition ; and this prize, with all 
 the attending patronage and power of the office, was sufficient 
 to sweep into the arrangement every office of the State, and, 
 as it turned out, to overcome the virtue, consistency, and self- 
 respect of both the factions that entered into the scheme. 
 
 And now we have a Constitution offered to us, which has 
 been made by some of the very men who took a leading part 
 in that spoliation of the offices of the State. Their political 
 relations, and the relations of their respective parties to the 
 Commonwealth, are unchanged. They are numerically what 
 they were then ; at least, they have not increased, and it is 
 probable that one of them is somewhat diminished. We 
 may, accordingly, not expect to find the provisions of this 
 Constitution so framed, as to discourage or prevent similar 
 transactions, in the organization of the government. When 
 two parties have passed through a traffic like that of 1850-51, 
 they will not be found creating any obstacles to a repetition 
 of the profitable transaction. If, consequently, you will ex-
 
 MAJORITY AND PLURALITY. 63 
 
 amine carefully the provisions which they have made, you will 
 see internal evidence enough that they have shaped them with 
 a purpose. If anybody had found this Constitution in the 
 street, without the slightest knowledge of the occurrences of 
 the past summer, he would have had no reason to doubt by 
 whom it had been made, or what it had been made for. 
 
 It retains the rule of a majority for the election of a Gov- 
 ernor by the people, and abolishes it, for a plurality, in the 
 election of Senators. It abolishes the majority rule for a 
 seat in the Senate, and retains it for a seat in the House. 
 It enables a minority of the people to elect a majority of 
 members of the House, and this majority are to select the 
 two candidates out of three, who are to be sent to the 
 Senate, when there is no choice of Governor by the people. 
 It thus secures and perpetuates the rule, by which a popular 
 election of Governor, in the existing state of things, is almost 
 sure to be defeated. Then, when it gets the election into the 
 House, the political character of the two candidates who are 
 to be sent up to the Senate is to be determined by those who 
 represent a minority of the whole people ; and finally, when 
 the matter reaches the Senate, the ultimate choice is to be 
 made by men who obtain their seats at the board by a plural- 
 ity only of the votes in their respective districts. 
 
 Such a system, it is needless to say, is destitute of all prin- 
 ciple and consistency. It is not to be dignified with the name 
 of a system. It is simply a disgraceful scheme for obtaining 
 political power, without the concurrence of the people, who 
 are the rightful holders and dispensers of that power. If 
 provision must be made to meet the case of a failure to elect 
 the Governor by popular vote, the very first principle in that 
 provision should be, that those who are to become the electors in 
 the secondary stage of the election should themselves represent 
 the largest possible number of the people. This principle the 
 Convention have directly reversed. By the manner in which 
 they design to constitute the House of Representatives, they 
 have made the secondary electors of the Governor, that is, 
 the majority of the House, the representatives of a small 
 minority of the whole people, dwelling in the smallest and 
 poorest class of towns in the State. Finally, when the third
 
 64 MAJORITY AND PLURALITY. 
 
 stage of the election is reached, the ultimate electors of the 
 Governor may be persons who not only do not represent polit- 
 ically a majority of the whole people of the State, but each 
 one of whom may in fact be elected by an actual minority of 
 the votes in his own district. 
 
 Let me now, as an illustration of the nature of this scheme, 
 suppose that the frarners of the Constitution of the United 
 States, as in fact was once proposed, had provided that the 
 people should vote directly for the President, and, in case no 
 person should receive a majority of the popular vote, that the 
 choice should be made by certain electors. But suppose also, 
 what in point of fact never was proposed, that they had pro- 
 vided, that a majority of these electors should be chosen by a 
 class of States containing a small minority of the American 
 people. If we can imagine such a provision ever to have 
 taken effect, it would long ago have overthrown the govern- 
 ment. The intolerable absurdity and folly of such a scheme 
 would have destroyed the Union, on the very first occasion 
 that might have brought it into practical operation. And it 
 ought no more to be tolerated in a State, than it ought to have 
 been or could have been tolerated in the Union. The Governor 
 of a State is the representative of the people of the State, just 
 as the President is the representative of the people of the Unit- 
 ed States. Like the President, he is a distinct branch of the 
 legislative power, besides being the Executive ; and, if he 
 cannot be the actual representative of the political sentiments 
 of a majority of the people, speaking through a primary elec- 
 tion, he ought to be designated, in the secondary election, by 
 those who represent the largest possible number of the people. 
 
 But argument and discussion on such a scheme as this of 
 the Convention are a waste of words. I will add a few ob- 
 servations upon one of their plausible side-issues, and then I 
 shall have done with this part of their plan. After stating 
 how much of the majority rule they retain, and how much of 
 the plurality principle they adopt, without assigning a single 
 reason for their contradictory provisions, they say : 
 
 " At the same time, we have provided that the Legislature may sub- 
 stitute the plurality rule whenever the public will shall demand it, with 
 a condition, that no act for that purpose shall take effect until one year
 
 MAJORITY AND PLURALITY. 65 
 
 after its passage. Thus we have given an opportunity to test the wis- 
 dom of the plurality system by experience, and power to apply it to 
 every popular election in the Commonwealth, whenever the deliberate 
 judgment of the people shall require it." 
 
 Now, upon this the reader will have the goodness to observe 
 three things : 1. Supposing that the public will should ever 
 be in favor of a uniform and consistent rule for all popular 
 elections, and that that rule should be the plurality principle, 
 who are to interpret the public will ? We have heard much 
 from the writers of the Address about " interpreting the peo- 
 ple's will." Who are to interpret it in this instance ? Why, 
 a Legislature, chosen under this new Constitution, in which 
 a minority of the people will have acquired a power that they 
 will never part with, until it is wrested from them by another 
 Constitution, or something worse. It is not made imperative 
 upon the Legislature to substitute the plurality rule, any- 
 where ; it is only provided that they may. 2. It is an entirely 
 false issue to pretend that " the wisdom of the plurality rule " 
 is involved in the acceptance or rejection of this Constitution. 
 If it had been made imperative upon the Legislature to try 
 the plurality rule, there would have been some pretence to say 
 that an opportunity was " offered to test its wisdom." But 
 the Convention have provided no such opportunity. What 
 they have done is, first) to leave it wholly optional with the 
 Legislature, and, secondly, to constitute a Legislature that will 
 have the strongest possible motives to make them blind and 
 deaf to every demonstration of the popular will. 3. If the 
 Legislature thus constituted should ever be driven, by any 
 chance, into a change of the rule, the act is not to take effect 
 until one year after its passage. One more chance is thus 
 reserved to the political schemers who have devised this sys- 
 tem, to obtain possession of the government, and who knows 
 what may not be done for party power and party purposes, 
 while the people stand waiting a whole twelvemonth for the 
 uniform rule that is to bring their own government a little 
 more under their own control ? 
 
 PHOCION. 
 
 6*
 
 66 JURIES JUDGES OF THE LAW. 
 
 No. X. 
 
 JURIES JUDGES OF THE LAW. 
 
 AMONG the propositions submitted by the late Convention, 
 as amendments to the Constitution, is the following : 
 
 " In all trials for criminal offences, the jury, after having received 
 the instruction of the court, shall have the right, in their verdict of 
 guilty or not guilty, to determine the law and the facts of the case ; but 
 it shall be the duty of the court to superintend the course of the trials, 
 to decide upon the admission and rejection of evidence, and upon all 
 questions of law raised during the trials, and upon all collateral and 
 incidental proceedings ; and also to allow bills of exceptions. And the. 
 court may grant a new trial in case of conviction." 
 
 It is understood to be the purpose of this amendment to 
 make the jury in criminal trials judges of the law; that is to 
 say, to give them the power of determining the law as well as 
 the facts of the case, and to remove the obligation to receive 
 the instructions of the court upon the law as absolutely bind- 
 ing. Whether the terms of the proposition are such as will 
 accomplish this object with safety to the accused, I shall con- 
 sider hereafter ; at present, I wish to discuss the question wheth- 
 er the object itself is a fit and proper one to be accomplished. 
 
 The importance of a right decision of this question cannot 
 be overstated. If this proposition is adopted as a part of our 
 Constitution, the whole administration of our criminal law, as 
 it involves the rights of the Commonwealth on the one hand, 
 and those of the accused on the other, will be seriously and 
 deeply affected by it. If the rights of the public, or the rights 
 of the accused, either or both, shall be essentially impaired or 
 endangered by this change, the whole institution of jury trial 
 will lose ground in the public confidence and respect. The 
 persons who propose this change affect to belong to the party 
 of progress and improvement. This step, instead of being a 
 step in the direction of progress and improvement in the 
 science of government, is a step backwards towards the Dark 
 Ages. It is a step which it would be discreditable to a people
 
 JURIES JUDGES OF THE LAW. 67 
 
 so intelligent, and possessed of such ample means for the safe, 
 correct, and consistent administration of criminal jurisprudence, 
 as the people of Massachusetts are, to take. It is so, because 
 it confounds things perfectly distinct from each other ; because 
 it intrusts the determination of a class of questions of great 
 difficulty and nicety to a tribunal unfit to determine them ; 
 because it exposes the rights of the public and the rights of the 
 accused to unnecessary dangers ; and because it will inevita- 
 bly diminish the public respect for the great and important 
 institution of trial by jury. 
 
 The real value of trial by jury is the same in kind, although 
 it may differ in degree, in both criminal and civil cases. No 
 man, who has not some political purpose to gain, and who 
 really understands the subject, would think of assigning to 
 trial by jury in civil cases a higher value than this; viz. that 
 it furnishes a safe and convenient, and therefore valuable 
 tribunal, for the determination of questions of fact. There is, 
 undoubtedly, in the intelligence and knowledge of human na- 
 ture and of human affairs, which are to be found among a jury 
 of twelve men drawn from the common and miscellaneous 
 pursuits of life, great aptitude for the determination of ques- 
 tions which depend upon human testimony. But, beyond 
 this, the value of jury trial in civil cases cannot be carried. 
 No man, with an important right in litigation between him- 
 self and his neighbor, would be willing to have a jury deter- 
 mine any thing more than the facts of his case. A proposition 
 to have them determine the law would be instantly rejected 
 by every litigant. In criminal cases, there is to be added to 
 the value just stated one further element, which trial by jury 
 introduces into the administration of the criminal law, as a 
 safeguard to the liberty of the citizen, between the govern- 
 ment and the accused, viz. the interposition of the people. 
 But this does not render the people, or their representatives, 
 the jury, more capable of determining questions of law cor- 
 rectly in criminal cases, than in civil. They never were made 
 a part of the tribunal, upon any notion that they were more fit 
 to determine a question of criminal law, than one of civil right; 
 and although the common law has empowered the jury to 
 return a general verdict of guilty or not guilty in criminal
 
 68 JURIES JUDGES OF THE LAW. 
 
 cases, which involves a decision of the law, as well as of the 
 fact, it has always proceeded upon the idea that the jury 
 should take the instructions of the court as an evidence of 
 the law, which they are bound to regard. The question there- 
 fore remains, in regard to criminal cases, whether the jury are 
 as competent to determine the law, as they are to determine 
 the facts involved in the issue. If they are not, then the pub- 
 lic are bound to provide for the determination of the law of 
 the case by some tribunal, or some portion of the tribunal 
 before which the trial takes place, that is competent to deter- 
 mine it, with safety to the rights of the accused and the rights 
 of the government. 
 
 I will now proceed to illustrate the views which I take of 
 this subject, a little more in detail. A man is accused of 
 crime, and is set to the bar to be tried for an offence which 
 must be distinctly and specifically charged. If he is guilty, it 
 is of the utmost importance that he should be convicted. If 
 innocent, it is equally important that he should be acquitted. 
 The very statement of these propositions shows that there are 
 rights involved in the trial, on both sides, of equal importance. 
 The question to be determined is, whether the party is guilty 
 of the crime charged ; but this question is composed of two 
 elements, or rather it is an inquiry involving two questions, 
 viz. : First, did the accused do certain acts ? Secondly, do 
 those acts, under the circumstances in which he did them, 
 constitute the crime charged ? The first is purely an inquiry 
 into a matter of fact. The second is purely an inquiry into a 
 matter of law. A tribunal, or a part of a double tribunal, may 
 be very fit to determine the first, and very unfit to determine 
 the last. The two questions are so essentially different, both 
 in their nature and in the elements for their determination, 
 that a capacity to determine the former upon correct princi- 
 ples has no tendency to show a capacity for determining the 
 latter. Because a jury of twelve men, taken from all the 
 occupations of life, are extremely competent to decide, upon 
 evidence, whether the accused did certain acts, it does not at 
 all follow that they are competent to determine whether those 
 acts constitute the crime charged. Take the common case 
 which occurs in nine instances out of ten of indictments for
 
 JURIES JUDGES OF THE LAW. 69 
 
 murder, where the question is, whether the killing amounts to 
 murder, or only to manslaughter. It will not be pretended, 
 by any man of common sense and common honesty, that the 
 nice distinctions between murder and manslaughter are known 
 to the common run of men likely to be drawn upon juries, 
 however great their general intelligence, or however high their 
 social position. They may be, and I think they are, very 
 capable indeed of deciding correctly what acts the accused 
 did; whether he struck the blow in sudden passion, and in 
 a moment of human infirmity, or in premeditated malice; 
 whether provocation existed or was absent; whether the 
 accused himself stood in any danger from the deceased ; or 
 whether the deceased did any thing to draw upon himself the 
 fatal stroke. 
 
 These are questions which depend entirely upon testimony 
 as to matters of fact, and which common men are not only 
 capable of determining, but which they can, perhaps, best de- 
 termine, out of their general acquaintance with human actions 
 and motives, and their general capacity to judge of the force 
 of human testimony. But the question, whether the acts of 
 the accused, in all the circumstances in which he stood, 
 amount to murder or only to manslaughter, depends upon 
 principles and distinctions with which common men are not 
 familiar. Of his own knowledge, or from his own sources of 
 knowledge, not one juror in a thousand can correctly decide 
 this question. He must, in some way, be informed at the 
 trial, and by some one having a part to perform in the trial, 
 what the rules and principles are, on which the just determina- 
 tion of this question depends. We will suppose that he is 
 informed by the court, but is left at liberty to apply the 
 knowledge, or not to apply it, as he sees fit ; to take so much 
 of it as he chooses to take, and to reject the rest ; or to treat 
 the whole with inattention, according to his general views of 
 the propriety or expediency of convicting or acquitting the 
 accused. The difficulty and it is a fatal one to the pro- 
 priety of this plan is, that, in this state of things, neither the 
 public nor the accused can have any guaranty that the verdict 
 will be founded on correct views of the law. As to the facts, 
 the oath of the juror is a guaranty for a correct verdict; for
 
 70 
 
 JURIES JUDGES OF THE LAW 
 
 when a juror is sworn to render a true verdict, according to 
 the evidence, his conscience is reached ; the evidence places 
 facts before him, and he cannot disregard those facts without 
 violating his conscience. But when he is sworn to render a 
 true verdict according to the law and the evidence, if he is 
 left to " determine " absolutely what is law, his conscience is 
 not reached ; for what the judge or the counsel in the cause 
 may tell him is law, amounts only to opinions, and if he is the 
 ultimate judge of the law, he may have a different opinion, 
 and may follow it, without any injury to his conscience, and 
 without violating his oath. If the juror is to determine the 
 law for himself, without any standard for that determination out 
 of himself, his oath is no guaranty to the public or the accused, 
 that he will decide according to the law of the land. The 
 provision now before us supposes that the juror is to have an 
 opinion of his own upon the law, and that he is to act upon 
 it, when he sees fit; or, in other words, that he is to determine 
 what the law is, without any standard of determination out 
 of himself. This, I affirm, abolishes the sanction of the juror's 
 oath, so far as there is any matter of law involved in the issue. 
 I am more and more persuaded that this objection is a 
 true one, the more I examine this subject, and that it ought 
 to be decisive of the impropriety of adopting the proposition 
 of the Convention. Let the reader consider, for one moment, 
 of what vast consequence it is, that the determination of the 
 question of guilt or innocence of crime should be made under 
 some sanction, which will reach the consciences of those 
 who are to determine it. Innocence has no other protection, 
 guilt has no other certainty of punishment, than what is 
 afforded by the sanctions which bring the conscience of the 
 tribunal into activity, and cause it to be violated by a wrong 
 decision knowingly made. We endeavor to reach the con- 
 science of a juror by his oath; and in general we do reach it, 
 and bring it into its proper relations with his understanding. 
 He is required to make a solemn promise before God, and by 
 a direct appeal to the Deity, that he will determine the issue 
 " according to the law and the evidence given him." This is no 
 mere ceremony. It is a direct invocation to conscience, to do 
 its appropriate office, under the most solemn and searching of
 
 JURIES JUDGES OF THE LAW. 71 
 
 all religious sanctions. There can be no doubt that it is effec- 
 tual, in the vast majority of instances, in every Christian 
 community. The common language that is constantly heard 
 at the bar, in the mouths of advocates, in which the oaths of 
 the jury are invoked, proves that the efficacy of these oaths is 
 well understood by that class of men whose business it is to 
 study the minds of jurors, and to understand the motives, 
 principles, and feelings that actuate them. That principle, to 
 which the advocate, in the highest flight of his impassioned 
 address, makes his final and strongest appeal, must be an oper- 
 ative and influential one, in the minds of jurymen. No man 
 would willingly submit to be tried by an unsworn jury, and 
 no government ought to submit its accusations of crime to a 
 tribunal which does not act under this sanction. 
 
 But it is obvious that, whatever form of oath is resorted to, 
 the conscience of the juror is not brought into the act of 
 decision, if he is so placed as to be able to make a wrong 
 decision without knowing that it is wrong. It is the wrong 
 decision knowingly made, that violates the conscience; and if 
 the knowledge that it is wrong be wanting, conscience is as 
 passive as if it formed no part of the moral being, whose men- 
 tal faculties are employed in the act of making the decision. 
 Now, in nine cases out of ten, it is impossible for a juror, who 
 is made the judge of the law, with a right to disregard the 
 instructions of the court, to know whether his own view of 
 the law is correct or not. When the witnesses tell him facts, 
 he knows, if he believes what they say, what will be a correct 
 and what an incorrect decision, so far as the facts are con- 
 cerned. He is not at liberty to vary those facts, or to depart 
 from them ; and if he does, he knows that he decides wrong- 
 fully. But when the court tells him what the law is, which 
 makes those facts a particular crime, and at the same time 
 tells him that he has a right to take a different view of the 
 law, if he sees fit, he does not knowingly decide wrong, how- 
 ever wrong his decision may be, so far as the law is concerned, 
 because he has no means, out of himself, by which to deter- 
 mine what is right and what is wrong. Hence, I say, his con- 
 science is not appealed to at all, in that part of the case which 
 depends upon the law, and the accused may be acquitted or
 
 72 JURIES JUDGES OF THE LAW. 
 
 convicted without the intervention of the moral sense of the 
 juror in the act of determination. 
 
 Apart, therefore, from all consideration of the fitness of ju- 
 rors to determine questions of law, a consideration which I 
 am willing to waive, except so far as it bears upon the ques- 
 tion of their being able to know when they decide wrongfully, 
 I maintain that a constitutional provision, which removes 
 or even weakens the sanctions of a juror's oath, would be a 
 change very unfit for an enlightened, moral, and religious 
 people to make ; and I submit to all reflecting men, that 
 when the juror has a right to disregard the instructions of the 
 court, and to determine the law of a case for himself, his oath 
 does not reach his conscience for any thing but the facts de- 
 tailed to him by the witnesses. He may hold the law to be 
 any thing that he pleases, and acquit or convict accordingly, 
 without the least violence to his moral nature. 
 
 I know not what is to take the place of that fear of God, 
 under which, as an ever-present sanction, justice has always 
 been administered in countries governed by the common law. 
 I shrink from whatever tends to banish it out of any tribunals, 
 as from a thing hostile to the great interests of civilization. 
 There can be no doubt, that, since the spread of Christianity 
 among men, both criminal justice and civil justice have been 
 administered with vastly greater purity than they were before ; 
 and that purity has increased, just in proportion as the different 
 systems of jurisprudence have given directness and force to 
 those religious sanctions, which preserve the mind of man in 
 its true relations of responsibility to God. No amount of 
 general intelligence or general integrity can perform the office 
 of that direct appeal to the moral sense and the religious na- 
 ture, which is made by a juror's oath. Justice, administered 
 without the active and restraining presence of conscience, 
 would be a curse to any people on earth. 
 
 It certainly is not so administered now, among us. When 
 the jury are sworn to render a true verdict, " according to the 
 law and the evidence given them," they receive the law from 
 a judge, whose official oath binds him to state it truly, accord- 
 ing to the best of his ability and understanding, and who acts 
 also under the penalty of an impeachment, if he states it
 
 JURIES JUDGES OF THE LAW. 73 
 
 knowingly wrong. The oath of the jury, which binds them 
 to return a verdict in accordance with the law given to them 
 by the court, insures the action of their consciences upon the 
 law of the case, as well as upon the facts. If the law is not 
 correctly stated by the court, and the accused is convicted, a 
 bill of exceptions enables him to have it reviewed and reex- 
 amined, under all the lights that can be brought to bear upon 
 the question. For this system, in which, from the beginning 
 to the end of the process, every part of the tribunal acts un- 
 der the most solemn religious responsibilities, the Convention 
 have proposed to substitute a power in the jury to act upon 
 their own opinion of the law, which no oath or adjuration 
 can bring within the domain of conscience. 
 
 PHOCION. 
 
 No. XI. 
 JURIES JUDGES OF THE LAW. 
 
 SINCE I last addressed you on the subject of the proposed 
 Constitution, intelligent men, in all parts of the State, have 
 devoted themselves to the examination and exhibition of its 
 deformities, and there is now a reasonable prospect of its be- 
 ing rejected by your votes. Perhaps further discussion will 
 have little influence on the result. I have, however, been 
 urged to complete the papers commenced nearly three months 
 since, that they may form hereafter a body of arguments and 
 opinions upon questions, that will always be of public impor- 
 tance, and that they may remain part of the history of this 
 great controversy. 
 
 The last topic to which I had occasion to call your atten- 
 tion was the Third Proposition submitted by the Convention, 
 which undertakes to make juries the final judges of the law. 
 I have shown, that this proposition cannot be adopted as part 
 of the Constitution of this Commonwealth without rendering 
 7
 
 74 JURIES JUDGES OF THE LAW. 
 
 nugatory the sanction of the jurors' oath. It remains for me 
 to show, that it cannot be adopted with safety to accused per- 
 sons, and that no man can be sure of a fair trial, according 
 to the law of the land, under the operation of its provisions. 
 
 The object of the provision doubtless was, to give addi- 
 tional protection to the accused. It will certainly fail to pro- 
 duce this effect. Juries are often quite as eager to convict as 
 to acquit ; and it sometimes requires all the authority of the 
 bench to show a jury, that, whatever the moral guilt of the 
 party on trial may be, he is not guilty, according to law, of 
 the crime charged, and to induce them to act accordingly. 
 Nothing can be more important to the welfare of society, 
 than to have men convicted and punished for crimes, accord- 
 ing to law. A conviction against the law is a hundred-fold 
 more pernicious in its consequences, than an acquittal in the 
 face of the facts. Now this Third Proposition of the Conven- 
 tion is so absurdly and awkwardly framed, and contains such 
 contradictory provisions, that, after it has been adopted as 
 part of the Constitution, it will be utterly impossible to ob- 
 tain any remedy or relief for a man who may be convicted by 
 a jury against the law of the land, except through executive 
 pardon. The proposed amendment is as follows : 
 
 "PROPOSITION NUMBER THREE. In all trials for criminal offences, 
 the jury, after having received the instruction of the court, shall have 
 the right, in their verdict of guilty or not guilty, to determine the law 
 and the facts of the case ; but it shall be the duty of the court to super- 
 intend the course of the trials, to decide upon the admission and rejec- 
 tion of evidence, and upon all questions of law raised during the tri- 
 als, and upon all collateral and incidental proceedings ; and also to 
 allow bills of exceptions. And the court may grant a new trial in 
 case of conviction." 
 
 Here, then, it is provided, that the judge shall preside at 
 the trial, and shall decide the law, that is, I suppose, shall 
 rule upon it to the jury ; but that, after they have received the 
 instruction of the court, the jury shall determine the law (as 
 well as the facts of the case), that is to say, shall finally de- 
 cide what is law and what is not. If they decide wrongfully, 
 or, in other words, if, upon the facts of the case, they convict
 
 JURIES JUDGES OF THE LAW. 75 
 
 the accused of the crime charged, when in point of law he is 
 not guilty of that crime, there can be no remedy for him on 
 earth, except to appeal to the interference of the Executive. 
 
 The direction that the court shall " allow bills of excep- 
 tions," can have no application to such a case as this. Bills 
 of exceptions are allowed for the purpose of bringing again 
 under discussion, after the trial has terminated, the rulings of 
 the court upon matters of law. But, when the court has 
 ruled the law correctly, and the jury, exercising the constitu- 
 tional right which this provision means to give them, have 
 held the law wcorrectly, there can be no bill of exceptions, 
 for there is nothing to which it can be applied. Nor will the 
 provision, that the court may grant a new trial in case of 
 conviction, be of any avail, when the jury have decided the 
 law incorrectly, for two reasons. First, because the court 
 cannot know that a wrong view of the law was the ground 
 of the verdict ; and secondly, because the jury, being made 
 final judges of the law after they have received the instruc- 
 tions of the court, the clause which empowers the court to 
 grant new trials must necessarily be confined in its construc- 
 tion to those cases where the conviction is against the weight 
 of the evidence. It cannot include cases where the allegation 
 is, that the jury have misconstrued or misapplied the law to 
 the facts, because the very section of the Constitution, to 
 which this clause is appended, makes the jury final judges of 
 the law. 
 
 Now it may be assumed, with entire certainty, that in nine 
 cases out of ten, in which the jury should undertake to exer- 
 cise their prerogative of judging finally of the law, they would 
 judge wrong ; and out of these nine cases, in every one in 
 which there should be a conviction, there would be no remedy 
 whatever for the accused, short of the Governor's pardon. Let 
 me invite your careful scrutiny of this difficulty. 
 
 PHOCION.
 
 76 AMENDMENT OF CONSTITUTIONS. 
 
 No. XII. 
 
 THE AMENDMENT OF CONSTITUTIONS. 
 
 THE discussion which I propose to terminate in this paper 
 was commenced before any political party in the State had 
 determined to oppose the Constitution prepared by the late 
 Convention. The objections which I have urged against it 
 have therefore derived none of their force from the policy of 
 any political combinations among us. 
 
 Having discussed the principal and most objectionable 
 changes which you have been asked to make in the existing 
 Constitution, I have now to consider the broader question of 
 your competency to alter the Constitution of the State in the 
 mode proposed. However little this question has been consid- 
 ered, it is one of transcendent importance; and looking forward, 
 as I do, with confidence, to your rejection of these changes, it 
 seems to me eminently desirable, that the true principles of 
 our American liberty should be stated at the present time, 
 because that rejection will be likely to be followed by a return 
 to those principles. Had I been offered a seat in the late 
 Convention, I should certainly have declined it, because I 
 hold the whole proceeding to be an act of revolution, and I 
 can see no necessity for overturning the present government 
 of the State by a resort to revolutionary power. 
 
 The Revolution of 1776 established certain great principles 
 as the fundamental doctrines of American civil liberty. The 
 first of these principles was, that the people, and not an ex- 
 ternal authority, are the source of all political power. Our 
 ancestors threw off the authority of the crown of Great 
 Britain, and substituted for it their own. It follows, as a 
 necessary corollary from the right of self-government, that 
 those who are to govern themselves have a right to alter their 
 government from time to time. But this idea of a govern- 
 ment of the people, acting through the will and voice of a 
 majority, was not new. The ancient democracies exhibited it; 
 and its entire theory, with all the distinctions between this
 
 AMENDMENT OF CONSTITUTIONS. 77 
 
 and other forms of government, is as old as Aristotle. But 
 what was new, and peculiarly American, was the second 
 fundamental principle, which was brought into existence, and 
 practically established, at the period of the Revolution ; viz. 
 that the people may limit their own power for the good 
 of all, and that such limitations shall thereafter be respect- 
 ed, for the sake of the rights of the minority. The capaci- 
 ty of the people to limit their own power is necessarily 
 included in their right to establish and alter government. 
 Those who have originally unlimited control over a subject, 
 may covenant in what way .they will exercise that control, 
 and may restrain themselves as to some modes, reserving to 
 themselves others. Now, the great limitation established by 
 the people of this Commonwealth at the Revolution was, that 
 there should be a written constitution, or permanent funda- 
 mental law, and an independent judiciary to expound it. The 
 object of this constitution, or permanent law, was, to set 
 bounds to the action of the majority, by restraining their legis- 
 lative power within certain limits ; and the Judiciary was es- 
 tablished, as the umpire, to determine when those limits are 
 transcended. As the idea of limiting the power of a self- 
 governing people was a purely novel and American idea ; so, 
 too, the particular limitation resorted to was wholly new and 
 peculiar to ourselves. Its purpose was, to establish a republi- 
 can and representative government, in contradistinction to a 
 mere democracy, in which there is no permanent law, and no 
 law of any kind, save the expressed will of the majority of 
 the day. 
 
 It would seem to be scarcely necessary, after all our ex- 
 perience in the principles of our institutions, to undertake to 
 prove that the people can and do limit their own power. 
 Every thing in government, with us, proceeds upon this as 
 a settled principle. In the first place, all restrictions as to 
 suffrage prove it. No one proposes that the whole mass of 
 the inhabitants shall govern. The whole mass have the 
 physical power to govern, and a revolutionary right to do 
 so ; but, in the origin of the government, the whole mass 
 have given their consent to certain limitations which confine 
 this power, in a constitutional sense, to persons of certain
 
 78 AMENDMENT OF CONSTITUTIONS. 
 
 qualifications. In the second place, the existence of constitu- 
 tions proves it. Aside from the provisions of a written con- 
 stitution, and acting in disregard of them, the whole mass of 
 the people, including men, women, and children, have the 
 revolutionary power to overturn the established order of things 
 at any time. But in and by a written constitution, they have 
 agreed that this power shall not be resorted to, but that it 
 shall be limited both as to the forms or modes in which it is 
 to be exercised, and the individuals who are to exercise it. 
 
 It was, then, to prevent a resort to the mere power of num- 
 bers at the expense of the minority, and to establish a rule of 
 civil polity, that should be permanent, that written constitu- 
 tions were devised and adopted. If, therefore, a constitution 
 is of itself a limitation of the original power of the people to 
 declare, from time to time, what shall be the law, it follows 
 that all the provisions of such a constitution are equally to 
 be regarded as limitations of the same power. So that, if the 
 people have, in their constitution, pointed out and prescribed 
 a mode of altering or amending it, a resort to any other mode 
 is a resort to revolution, and a departure from the constitu- 
 tional limitations of their own power, which they themselves 
 have established. By such a course of action, the constitution 
 comes to be no more permanent than a statute, which shifting 
 majorities may alter or repeal at any time. 
 
 The political history of Massachusetts affords no warrant 
 for the doctrine, that the present Constitution is capable of 
 being amended or altered by any other course of action, than 
 that embraced in one of its provisions. The Constitution of 
 1780 was adopted by, and established for, the people living 
 within the present limits of Massachusetts, or within the 
 limits of what is now the State of Maine. When that por- 
 tion of the people inhabiting the latter territory separated 
 themselves from us, with our consent, certain amendments of 
 the old Constitution became necessary for the people remain- 
 ing in the limits of the present State of Massachusetts. The 
 Convention of 1820 was called for this purpose ; but it estab- 
 lished no precedent for future conventions. The Constitution 
 of 1820 was framed and established by the people of Massa- 
 chusetts, after an integral portion of them had separated
 
 AMENDMENT OF CONSTITUTIONS. 79 
 
 themselves from the rest, leaving those who remained to 
 modify and adapt the old government to their new circum- 
 stances. This people, acting through a Convention, which 
 was the only mode by which, in their situation, amendments 
 could be proposed and submitted for popular approval and 
 adoption, established nine articles of amendment to the old 
 Constitution. The ninth of these articles of amendment con- 
 tains a limitation of their own power, which the people then 
 saw fit to impose upon themselves. It prescribed a mode in 
 which future amendments should be made ; viz., that they 
 should be prepared, and voted by a majority of one branch, 
 and by two thirds of the other branch, of two successive legis- 
 latures, and should then be submitted to the people for ratifi- 
 cation by a majority of the qualified voters. 
 
 It is perfectly clear, therefore, that the present Constitution 
 has granted no power to the Legislature to delegate to any 
 other body the authority to prepare and propose amendments, 
 and consequently has given it no power to call conventions 
 for this purpose. On the contrary, having prescribed the 
 course and duty of the Legislature in the preparation and 
 submission of amendments, the argument is unanswerable, 
 that this provision of the Constitution exhausts all the power 
 which the people intended to confer upon the Legislature. 
 So that, upon all just principles of reasoning and construc- 
 tion, the power to call conventions, and to authorize them to 
 prepare amendments, and provide for their adoption by the 
 people, must be deemed to have been withheld, as much as if 
 it had been expressly prohibited. 
 
 I regard the act of the Legislature, therefore, calling the 
 late Convention, and all proceedings under it, as entirely un- 
 authorized and unlawful. The adoption of the Constitution 
 prepared and voted on pursuant to this act, would be a revo- 
 lution ; peaceable and orderly, in one sense, but a mere act 
 of physical force, which abrogates the constitutional limitation 
 of their own power, heretofore solemnly established by the 
 people. Such a proceeding renders the Constitution of the 
 State the mere expression of the temporary will of the ma- 
 jority of to-day, to be set aside by just such another expression 
 on any other day. No one denies the physical power of the
 
 80 AMENDMENT OF CONSTITUTIONS. 
 
 people so to act, but it is entirely inconsistent with the prin- 
 ciples of our constitutional liberty, and, if it passes into a 
 precedent, a majority may change the Constitution every 
 year, in any mode that party leaders may devise. 
 
 What is to restrain this physical power ? I answer, a re- 
 gard for principle; a conviction, on the part of the people, 
 that a steady adherence to the self-imposed limitations of their 
 own power, is both a duty and a high policy ; a duty, be- 
 cause justice to all requires it, and a high policy, because their 
 own interest demands it. They have the physical power to 
 pull down any man's house, at any moment, and to say that 
 he shall have no redress. But justice would be violated, and 
 their own turn may come next, when the majority, which sees 
 fit to act only upon the naked physical power to do a thing, 
 becomes shifted from the individuals who have so acted to- 
 day, and the same thing is repeated by others to-morrow. 
 
 PHOCION.
 
 THE 
 
 LETTERS OF SILAS STANDFAST, 
 
 TO 
 
 HIS FRIEND JOTHAM. 
 
 GEORGE STILLMAN HILLARD. 
 
 FIRST PUBLISHED IN THE BOSTON COURIER AND ATLAS, 
 IN OCTOBER AND NOVEMBER, 1853.
 
 THE 
 
 LETTERS OF SILAS STANDFAST, 
 
 HIS FRIEND JOTHAM. 
 
 No. I. 
 
 MY DEAR JOTHAM, You are one of the best farmers, but 
 by no means one of the best politicians in the county of Wor- 
 cester. On a question of turnips or subsoil ploughing I hold 
 you to be a good authority ; but when it comes to politics and 
 government, your judgment is not much better than mine 
 would be in the purchase of a yoke of oxen. The truth is, 
 my dear Jotham, that you were not wiser than the rest of us 
 when you were born, nor have you eaten a great deal of the 
 stuff on which wise men are brought up. You have not been 
 favorably placed in this respect. You have been for many 
 years a big man in a little town : you have been a selectman, 
 and a moderator in town meetings ; you are a justice of the 
 peace and a fore-handed man ; you have had nobody to con- 
 tradict you, to rake after your tongue and pick up your words 
 and fling them at you again ; the old men consult you, and 
 the boys take off their hats to you. You have not had the 
 nonsense knocked out of you, as we have that live in cities and 
 have to fight our way through a crowd, and scramble for all 
 we get. If I did not come and see you once a year, and trim 
 you off and curry you down a little, no tongue can tell upon 
 what shores you would have drifted. You might have been 
 a Millerite, and slept with an ascension-robe at the head of
 
 84 POLITICAL CREDULITY. 
 
 your bed. You might have had faith in the inspiration of 
 Andrew Jackson Davis. You might have believed that saints 
 and angels amuse themselves with table-turning and spirit- 
 rappings, and that any man may have a half-hours chat with 
 the ghost of Ethan Allen, on paying a dollar to Mrs. Gullem. 
 Certainly nothing is too much to predict of a man who did 
 believe in the sincerity of Martin Van Buren's conversion to 
 Anti slavery doctrines. 
 
 You enjoy one accidental piece of good luck. For so hon- 
 est a man as you are, you are, in one point, a bit of an impos- 
 tor, because you look so much wiser than you are. When I 
 commenced the practice of the law, a face like yours would 
 have been worth at least five hundred dollars a year to me. 
 I should have half won my cause before I had begun to ad- 
 dress the jury. Your tombstone gravity of manner, your 
 silence, and the solemn sententiousness of your speech when 
 you do open your oracular jaws, have given you a reputation 
 for wisdom, to which you have as little claim, as a crow has to 
 be called a respectable bird because he wears a black coat. 
 
 I have noticed that the grain of your mind has been running 
 to knots ever since you settled your new minister, the Rev. 
 Uplifted Sleek. He is doubtless a good man, but his kingdom 
 is still something of this world ; and I think it would be better 
 if he wasted less of his energies upon terrestrial objects. He 
 is a youth, just hatched out of a divinity school, running round 
 with the shell yet on his head, who knows about as much of 
 government, practically, and the difficulties of managing 
 twenty-five millions of human beings, as you do about play- 
 ing upon a dulcimer ; and yet there is not a question of pol- 
 itics or government which he has not settled entirely to his 
 satisfaction. It would be a real comfort to see a man who 
 knows as much as he thinks he does. He knows that the Fu- 
 gitive Slave Law is unconstitutional, and does not want more 
 than ten minutes to prove it to any candid person whose mind 
 has not been warped by those shallow sophists, John Marshall 
 and Joseph Story. He knows that Daniel Webster sinned 
 against his own conscience when he made his 7th of March 
 speech. He knows that this country can be governed without 
 any compromises on the subject of slavery ; and he believes
 
 CLERICAL POLITICIANS. 85 
 
 that, if he could have been called to Washington in the spring 
 of 1850, he could have settled all the questions that Congress 
 had before them, in about the time it takes him to write a 
 sermon. 
 
 There are many sucking theologians of the same stamp in 
 the old Bay State, and little good do they do in their day and 
 generation, with book knowledge enough to make them 
 conceited, and ambition enough to make them restless, who 
 are in fact clerical demagogues and Sunday stump-speakers, 
 who, instead of reasoning of righteousness and judgment, 
 are ever banging away, in season and out of season, upon the 
 Maine Liquor Law, or the Fugitive Slave Law, or some other 
 matter of secular controversy, and poisoning the Sabbath with 
 all the strife and bitterness of the week. When I have heard 
 such a shallow popinjay in the pulpit, hurling round his accu- 
 sations and denunciations, and waking up in the hearts of his 
 people the evil passions which it was his duty to rebuke and 
 put to sleep, I have sighed for the good old days of Dr. Dry- 
 drone, with his wig and his knee-buckles, who would preach 
 you ten sermons on predestination and make nothing of it. 
 
 The Rev. Uplifted, like all these higher-law men, knows 
 very well which side his bread is buttered on. He knows who 
 has got the prettiest daughters in his parish, and whose wife 
 makes the best apple-pies ; and I rather think that you know 
 it too, my dear Jotham. I can see the twinkle in the tail of 
 your eye as you read these words, though you are fifty miles 
 off. It is my private opinion, that the minister scrapes his feet 
 at your front door about as often as at any house in the village. 
 And the reverend gentleman has contrived to get the length 
 of your foot better than any shoemaker ever did. I will tell 
 you how he has done it. He has done it by holding his 
 tongue before you, much as he talks everywhere else ; by 
 putting you up to talk and then listening to you. It is a great 
 art, that of listening ; and Uplifted understands it as well as 
 any man I ever saw. When you are talking, he puts on an 
 expression of deference, of acquiescence, of acknowledgment, 
 which is beautiful to behold ; and you think him a man of 
 excellent sense, because he contrives to satisfy you of your own. 
 
 Coming to see you as I do, at regular intervals, I can mark 
 9
 
 86 FREE SOIL PARTY. 
 
 the influence which this smooth-tongued little minister has 
 gained over you. I can see how he has inoculated you with 
 his fanatical and fantastical nonsense. But for him, I do not 
 believe that you would ever have voted for Martin Van Buren 
 and joined the Free Soilers, or the Free Democrats, or what- 
 ever else they choose to call themselves ; for they have as 
 many aliases as Stephen Burroughs, and as I have not seen 
 to-day's Commonwealth, I am not certain what their last title 
 is. As you well know, I tried to hold you back, but it was in 
 vain ; you broke off, hook and line, bob and sinker ; and since 
 then, we have agreed to differ as to the depth of John P. Hale, 
 the honesty of John Van Buren, and the wisdom of Horace 
 Mann. 
 
 When we last sat under the shade of your patriarchal elms, 
 we talked about the Constitutional Convention which had 
 then just closed its sessions, and of the precious bantling 
 which was the result of their three months' gestation. I was 
 glad to find that there were some things in that document 
 which even you thought not altogether wholesome to take. 
 I should indeed have been surprised if all your early teaching 
 and inherited convictions had been so far rubbed out of you, 
 that you could have accepted all the rash and mischievous 
 innovations of those bungling political journeymen. I left 
 you in a rather hopeful state of mind, and only regretted that 
 my sudden call to town prevented my discussing with you, in 
 full, many points on which our conversation glanced. You 
 will remember that I promised to address you in writing, on 
 this subject, and to put down on paper some of the views 
 which I had only time to touch upon when we were together. 
 I mean now to redeem that pledge. I will point out in plain 
 language some of the objections which I have to this amended 
 Constitution, so called. 
 
 I will give you some reasons why I think that you, and 
 other men like you, good men, with families growing up 
 around them, and snug little properties which a political con- 
 stitution may make either greater or less, as the case may be, 
 should vote against it. And though the effort may cost me 
 more time than I can well afford, yet, on the whole, I do not 
 regret it, since it may be the better for you to have my views,
 
 CONSTITUTION OF 1780. 87 
 
 such as they are, in black and white. A letter which you 
 can read and re-read and meditate upon, is better than a long 
 talk, in which much is heard and little remembered. Spoken 
 words are like the music of a bobolink, which rings, and 
 swells, and gushes, till the whole meadow seems to be break- 
 ing into voice, and then passes off and cannot be recalled ; but 
 written words are like one of the songs which your little Mary 
 sings to you, and which she can sing again and again, and lay 
 down and take up and find still the same. Long may that 
 sweet voice be heard on earth, and charm your ear always, 
 and mine sometimes, with strains which are a foretaste of 
 that blessed land in which there are no laws to be broken, and 
 no constitutions to be amended. 
 
 SILAS STANDFAST. 
 
 No. II. 
 
 MY DEAR JOTHAM, You said in our last conversation, that 
 you thought the new Constitution, although not perfect, was, 
 on the whole, better than the old one. I do not think so ; *and 
 yet I am not so bigoted a conservative as not to be willing to 
 admit that some few of the proposed changes are good, and 
 some few neither good nor bad. But the difficulty is, that, 
 by the unwarrantable and unprincipled action of a majority 
 of the Convention, we are not allowed to pick and choose, 
 to select what we like, and throw away what we do not 
 like, but we must take all or reject all. This was the last 
 act the dying kick of the Convention ; but, though last in 
 time, I put it first in order; because of its importance, and 
 because it shows, most decisively and conclusively, what were 
 the motives of that body, and what was their real purpose 
 and object. 
 
 We have been living seventy years and more under a Con- 
 stitution. That Constitution was framed in 1780. The men 
 who drew it up were eminent for their wisdom, their virtue,
 
 88 CONVENTION OF 1820. 
 
 and their patriotism ; and the Constitution of Massachusetts 
 is a reflection and embodiment of their elevated qualities. 
 Under it we lived and thrived. We had our share of trials 
 and dangers, but we got happily through them. As children 
 must have the measles and the whooping-cough, so we had 
 the Shays rebellion, the Oxford war, the embargo, and other 
 troubles. But we had a good Constitution to start with, and 
 so we kept growing stouter and sturdier in spite of it all. No 
 one can say, that from 1780 to 1820 we were not a happy and 
 a prosperous community; as much so as any on the face of 
 the earth. In the latter year, an important event took place 
 in our domestic history. The District of Maine, which had 
 before made one family with us, felt that she was old enough 
 and strong enough to take care of herself ; and so we parted, 
 and she moved off and set up housekeeping on her own ac- 
 count. 
 
 This change in our relations made it desirable that there 
 should be some modifications in the instrument under which 
 the two States had previously lived. So, in the autumn of 
 1820, with the general assent of men of all parties, there as- 
 sembled in Boston a Convention of delegates for the purpose 
 of revising the Constitution of Massachusetts. That Con- 
 vention was a body not inferior in wisdom and worth to the 
 one which had framed the Constitution. Among the delegates 
 to speak of the dead only were John Adams, Daniel 
 Webster, William Prescott, Isaac Parker, Joseph Story, Lev- 
 erett Saltonstall, and John Davis, men admirable for their 
 strong sense and their political sagacity, and not less admira- 
 ble for their political integrity and unselfish patriotism. And 
 the rank and file were of the same spirit as the officers. You 
 might have taken any fifty names in alphabetical order, and 
 devolved upon them the work intrusted to the whole body. 
 Especially, the Convention of 1820 was not a partisan body. 
 No man among them considered whether the result of their 
 deliberations was likely to make John Brooks or William 
 Eustis Governor of Massachusetts. I do not mean to say 
 that they had not party convictions and party prepossessions, 
 but they did not set them in the front of their motives. They 
 came to their work with a singleness of purpose to make
 
 CONVENTION OF 1853. 89 
 
 such changes as the good of the State and the public wants 
 required, and no more. They sat in deliberation two months. 
 Their discussions were marked by ability, pertinency, and de- 
 corum. The result of their labors was submitted to the de- 
 cision of the people in fourteen distinct propositions, each of 
 which embraced a separate subject, so that the sense of the 
 voters might be fairly ascertained upon each ; and of these, 
 nine were accepted, and five were rejected. Thus, whatever 
 differences of opinion there might have been as to this or that 
 particular proposition, everybody felt that the people had been 
 honestly dealt with ; that no tricks had been played upon them ; 
 that the public sentiment had been fairly ascertained ; and 
 there was consequently a general acquiescence in the result. 
 
 Now, my dear Jotham, I am not going to open to you my 
 mind, as to the origin of the recent Constitutional Convention, 
 and the real motives of those who got it up ; nor am I going 
 to tell you, what I have so often told you before, that, in 
 my opinion, the people of Massachusetts no more needed a 
 Constitutional Convention than an ox needs a third horn. 
 Upon these points we have agreed to differ. You have made 
 up your fagots, and I have made up mine : you prefer your 
 way of tying them, and I prefer mine. So let that pass. It 
 is very certain that out of one hundred and eighty-two thou- 
 sand voters, sixty-six thousand did vote, in November, 1852, 
 that it was expedient that a Convention should assemble in 
 Boston, in May, 1853, for the revision of the Constitution of 
 Massachusetts. The Convention accordingly did assemble, 
 then and there. They remained in session three mortal 
 months, and the amount of talking they did in that time 
 was as great as it is possible for a body of that size to do in 
 such a period, in this imperfect state of existence. 
 
 The debates are now in the course of publication, in two 
 quarto or three octavo volumes. I am so fortunate as to 
 possess one of these octavo volumes. It is ten inches long, 
 six and a half inches wide, and three inches deep ; and it 
 weighs three pounds twelve ounces avoirdupois. It has nine 
 hundred and ninety-four pages, in double columns and fine 
 type. As to the quality of these debates, you and I will never 
 have a chance to differ ; for you will never have the patience 
 9*
 
 90 CONVENTION OF 1853. 
 
 to read them. If I had hated you as much as I love you, I 
 could wish you no worse fate than to be doomed to go through 
 them all, from beginning to end. Indeed, no mortal man will 
 ever read them through. If such a man should be found, I 
 advise Barnum to secure him for his museum. He will be a 
 greater curiosity than Joice Heth or the woolly horse. 
 
 I had occasion to keep a pretty sharp watch upon the doings 
 of the Convention, as they were reported from day to day in 
 the newspapers ; and I have dipped into the printed volume of 
 debates, here and there, and I am thus qualified to tell you, 
 what you never would find out for yourself. that there is a 
 considerable amount of ability in the discussions of the Con- 
 vention. There were many good speeches made on both 
 sides of the house. And, on the other hand, there were few 
 that were so bad as to be absurd and laughable. But more 
 than half of their recorded debates are just of that kind which 
 is the most wearisome to read. They are neither good nor 
 bad. They have about as much claim to be printed as the 
 talk round a bar-room fire on a winter's night, or the speeches 
 in a school-boys' debating club. They are mere dribble, 
 the rinsings of empty brains, and the runnings of party ken- 
 nels ; as nutritious as bran bread, and as savory as stale cider. 
 
 But I will not linger upon what they said, but proceed to 
 consider what they did. Their duty was to revise an existing 
 Constitution, and not to make a bran-new one ; and they 
 therefore ought to have presented all the amendments apper- 
 taining to one subject or department in a separate proposition, 
 to be voted upon independently. For instance, if any changes 
 were proposed in the Judiciary, they should have been offered 
 to the people by themselves. In the same way with the Bill 
 of Rights, with the Senate, with the House of Representa- 
 tives ; following the division of the Constitution itself. But, 
 instead of this, they have lumped together nearly all of their 
 alterations into one portentous mass, which must be bolted or 
 rejected entire. The amended Constitution makes a pamphlet 
 of forty pages. Of these, thirty-eight comprise one entire prop- 
 osition, and must be voted for on one ticket. Every voter 
 must say " Yes " or " No " to the whole of it. Appended to 
 this monstrous leviathan, like a fleet of cock-boats around a
 
 PARTY TRICKS. 91 
 
 line-of-battle ship, are seven other amendments or proposi- 
 tions, occupying in all less than two pages. 
 
 Thus, as I said before, there is no chance for the people's 
 expressing their minds upon the specific alterations made in 
 the Constitution. I, for instance, should probably vote for the 
 amendment dividing the State into forty Senatorial districts, 
 and choosing Senators by plurality, and I should certainly 
 vote against the change in the tenure of judicial officers. 
 You would probably vote against me on both points, though 
 I hope not on the last. Now see the embarrassment into 
 which we are both thrown. I am obliged to ask myself 
 whether I like the application of the plurality rule to Senators 
 well enough to overbear my objections to the change in the 
 tenure of judges, and induce me to take the two rather than 
 neither. This question, happily, I can readily answer. You 
 must go through the same process of self-inquiry, merely shift- 
 ing the like and dislike. 
 
 Now, what were the members of this Convention hired to 
 do ? They were hired to revise the Constitution, and not to 
 make a new one, and the fair and obvious duty imposed upon 
 them was to submit their revisions and amendments to the 
 judgment of the people, separately, each by itself, and 
 not all, or nearly all, in one lump. I call this an unauthorized 
 and unwarrantable act on the part of the Convention ; and I 
 maintain that, if the question had been voted upon by the 
 people, whether the result of their labors should have been 
 submitted in this way, in the shape of an entirely new Con- 
 stitution, a large majority would have voted against it. But 
 this letter is already long enough, so I will stop here, though I 
 have not done with the subject. 
 
 SILAS STANDFAST.
 
 92 ADDRESS OF THE CONVENTION. 
 
 No. III. 
 
 MY DEAR JOTHAM, In my last letter I spoke of the unex- 
 pected and unauthorized act of the Convention, in presenting 
 so large a portion of their amendments in one lump : and 
 showed you that such a course was a departure from their 
 plain path of duty, and a surprise upon the people of the 
 Commonwealth. I proceed now to consider the arguments 
 by which the majority of the Convention justify their conduct 
 in this regard. You will find them set forth in a document 
 appended to the Constitution, called " An Address of the Con- 
 vention to the People." They are as follows : 
 
 " And, first of all, we think it proper to present for your considera- 
 tion a complete system of organic law. The present Constitution was 
 adopted in 1780, and there have since been added thirteen important 
 amendments. By these amendments much of the original text is 
 already annulled, and it is only by a careful and critical analysis and 
 comparison, that the existing provisions can be determined. This 
 ought not to be. Constitutional laws should be plain, that they may 
 be impartially interpreted and faithfully executed, 'that every man 
 may at all times find his security in them.' We have not then 
 thought it wise, or even proper, to preserve, as a part of the Constitu- 
 tion, provisions which have long since been annulled ; nor do we feel 
 justified in proposing new specific amendments, whose adoption will 
 render the fundamental law of the Commonwealth more difficult to be 
 understood, and less certain in its requirements. 
 
 " We have, therefore, taken what remains unchanged of the Con- 
 stitution of 1780, and the subsequent amendments, preserving the 
 original language, wherever it appeared practicable, as the basis of a 
 new Constitution, and incorporated therewith such of the resolutions of 
 this Convention as are necessary to give to the whole, at once, a com- 
 prehensive and concise character. This has been our purpose ; and 
 if our view of duty is correct, we are entirely justified in submitting so 
 much of our work as will give to the people of Massachusetts a com- 
 plete system of organic law, as one proposition for your adoption and 
 ratification. It is undoubtedly true, that when amendments are specific, 
 and not numerous, they should be separately submitted to the judg- 
 ment of the people ; but this mode becomes impracticable in the for-
 
 WHAT A CONSTITUTION IS. 
 
 93 
 
 mation of a new government, or the rough revision of an old one. Our 
 attention has been necessarily directed to every provision of the Con- 
 stitution, and but one chapter is preserved in its original form. It only 
 remained for us either to submit our work, to be added to the old 
 Constitution as specific amendments, with the conviction that their 
 ratification would render your form of government more complicated 
 than it now is, or else to embody all of the old and the new that 
 appears necessary to the safe and harmonious action of the system, 
 and present it as The Constitution of Massachusetts" 
 
 All this is plausibly and artfully put. It is doubtless the 
 handiwork of that excellent logic-chopper, Governor Boutwell, 
 who has got a head as deep and as cold as a well ; and who, by 
 the rich bounty of nature, possesses a power of sophistry, and 
 an art of making the worse appear the better reason, such as 
 the oldest lawyer at the bar might envy. But let us see how 
 these solemn sentences will pass muster : 
 
 " And, first of all, we think it proper to present for your considera- 
 tion a complete system of organic law. The present Constitution was 
 adopted in 1780, and there have since been added thirteen important 
 amendments. By these amendments much of the original text is 
 annulled, and it is only by a careful and critical analysis and compari- 
 son, that the existing provisions can be determined. This ought not to 
 be. Constitutional laws should be plain, that they may be impartially 
 interpreted and faithfully executed, ' that every man may at all times 
 find his security in them.' " 
 
 In these few words there is both an overstatement and mis- 
 statement. It is not true that it requires a " careful and crit- 
 ical analysis " to determine what the existing provisions of the 
 Constitution are. On the contrary, there is not a man" in 
 Massachusetts, who has sense enough to make a will, or go 
 in when it rains, who cannot, in five minutes' time, satisfy 
 himself as to any constitutional provision he feels any interest 
 in. It would be better, perhaps, if the Constitution were as 
 round and as smooth as an orange, without a single excres- 
 cence upon it in the shape of an amendment. It would be a 
 prettier thing to look at. But, after all, the proof of the 
 orange is in the eating ; if it tastes good, it answers the ends 
 for which an orange was made. So the end for which a con- 
 stitution was made is to establish and maintain a government
 
 94 WHAT A CONSTITUTION IS. 
 
 which shall secure the liberty of all, and the rights of all ; and 
 if it do that, it does all its appointed work, and it is of no 
 consequence that it is not perfectly ship-shape, any more than 
 the Constitution of the United States, which has had a dozen 
 amendments tacked on to it since its first adoption. A pol- 
 ished mahogany cart would be handsomer than one of oak and 
 pine, but it would not bring home your hay any better. Men 
 feel about the constitutions under which they live, much as 
 you do about your house. An architect might find some- 
 thing to criticize in it. He might tell you that your porch 
 was not well proportioned, that your parlors were too low, and 
 that your entry was too large, or your kitchen too small. You 
 would say in reply, that all this might be true, but that you 
 had become accustomed to these things, and felt no discom- 
 fort from them, and that they had even become endeared to 
 you by old associations, and you would not have them changed 
 if you could. It would not be difficult to build a finer house ; 
 but, after all, it would not suit you so well. Yours, as it 
 stands, is warm in winter and cool in summer, and keeps out 
 the rain, and your wife likes it, and your children like it, and 
 that is enough for you. 
 
 Again, Governor Boutwell, in this Address, speaks of the 
 Constitution as if it were a body of laws coming immediately 
 home to every man's business and bosom, and that they ought 
 to be so plain " that every man may at all times find his secu- 
 rity in them." But is this so ? Consult your own memory for 
 a reply. You are a selectman and a justice of the peace. 
 How many times in your life have you had occasion to con- 
 sult the Constitution, for any thing regarding your personal 
 security, or for any thing else than a matter of discreet curi- 
 osity. Probably not once. On the other hand, not a week 
 passes that you do not have some call to consult the statutes 
 of the State. The Constitution is a body of organic rules. 
 These are simple in their construction and phraseology, and 
 the chief reason why they are not perfectly plain if they are 
 not arises from the imperfection of language. For instance, 
 the Constitution provides that every member of the House of 
 Representatives shall be chosen by written votes. This seems 
 entirely free from ambiguity ; but some years ago there arose
 
 WHAT A CONSTITUTION IS. 95 
 
 a question whether printed votes were or were not written 
 votes, in the sense in which that word is used in the Constitu- 
 tion; and it was taken up to the Supreme Court, and they 
 decided that written votes did there mean printed votes. In 
 this case, the Supreme Court was nothing but a live diction- 
 ary. In the Constitution of the United States, many of its 
 words and phrases have thus been judicially defined. In 
 the famous Dartmouth College case, the court did little 
 more than define the word contract, as used in the Constitu- 
 tion. 
 
 The Constitution, in general, bears directly and immediately 
 upon the Governor, the Legislature, the Judiciary, but only in 
 here and there a point upon the citizens, individually and per- 
 sonally. It is for the government, for the officers whom the 
 people elect, and the magistrates whom the Governor ap- 
 points. It prescribes certain rules and conditions to which all 
 departments of the government must conform. It marks out 
 certain limits over which they must not pass. It defines what 
 may be done and what may not be done. But it leaves a 
 wide margin, especially for the Legislature, to act in. A great 
 deal of mischief may be done, and yet the walls of the Con- 
 stitution not be overleaped. Unjust and ridiculous laws may 
 be passed, money may be foolishly spent, and the most absurd 
 resolutions adopted, and yet not a hair of the head of the Con- 
 stitution be touched. 
 
 You sometimes recreate your exhausted faculties with a 
 game of whist. This amusement will supply us with a famil- 
 iar illustration of the difference between a Constitution and 
 the body of statute laws made under it. The Constitution an- 
 swers to what may be called the laws of whist, such as that 
 the ace takes the king, that you must follow suit, that the 
 trump card takes every thing. These are comparatively sim- 
 ple, and may be learned in an evening. But the rules of 
 whist, which prescribe when such or such a card ought to be 
 played, are numerous and complicated, and these are like our 
 statute laws, which are, and must be, minute, various, and 
 manifold. 
 
 Again : whatever practical inconvenience may have arisen 
 from there being several amendments appended to the Consti*
 
 96 TWO SETS OF REASONS. 
 
 tution, might have been easily obviated by the action of the 
 Convention itself. One of the last things they did was to ap- 
 point a large committee, to meet in November, to count and 
 declare the votes on which the fate of the new Constitution 
 depends. That committee might have been charged with the 
 further duty of taking the Constitution into a new draft, incor- 
 porating all the present amendments, and also those which the 
 people should sanction by their votes in November. This 
 would have been an easy task. A clear-headed lawyer could 
 do it in a week, and not work hard either. 
 
 But to all arguments founded upon mere inconvenience, the 
 answer is obvious ; and that is, that the Convention was a 
 body acting- under instructions from the people, and that those 
 instructions were to revise an old Constitution, and not to make 
 a new one. If you sent your watch to a watchmaker to be 
 repaired, and he sent you in a bill for a new one, you would 
 certainly not pay him. The new watch might be a better one 
 than the old ; but that is not the question. The man was em- 
 ployed to do ONE thing, and he did another. You liked your 
 watch because your father gave it to you, because it was a 
 good watch, and because it had served you well. 
 
 And now, my dear Jotham, do you really suppose that the 
 solemn blarney of that plausible smooth-tongue, Governor 
 Boutwell, expresses at all the real reasons which induced the 
 leaders of the Convention to make such an experiment on the 
 sense and conscience of the people. If you do, you are 
 greener than the greenest of your meadows after a long rain, 
 and I advise you to keep out of the way of the grasshoppers, 
 or they will eat you up bodily. Some politicians have two 
 sets of reasons or motives. One is a shoiv set, which is par- 
 aded before the public, and the other is the genuine article, 
 which is only brought out in family parties, or before very inti- 
 mate friends. The former are like the drop scene at a theatre, 
 to amuse spectators, and hide the ugliness and falseness be- 
 hind it. 
 
 There was once a pretty narrative written in the French 
 language, called the Temple of Truth, describing a building 
 in which all the residents were constrained to speak the truth 
 involuntarily, and in spite of themselves. If Governor Bout-
 
 TWO SETS OF REASONS. 
 
 97 
 
 well had written that address in the Temple of Truth, it would 
 have run somewhat in this wise : 
 
 " You will observe, fellow-citizens, that the greater part of 
 our amendments are presented to your consideration in one 
 proposition, appended to which are seven others. These last 
 are of no great consequence to the objects we have in view, 
 and as to some of them, we have doubts whether they will be 
 ratified. We are not so foolish as to think, for instance, that 
 you will, by the adoption of the eighth proposition, throw 
 overboard the system of banking which has served you so long 
 and so well, and substitute for it the wild and visionary scheme 
 there presented. You did not expect to be called upon to vote 
 for all, or very nearly all, our amendments on one ticket ; but 
 Mr. Butler, Mr. Wilson, and myself, who have managed the 
 Convention from the beginning, have, after much deliberation, 
 thought this the most expedient course. You will observe 
 that we have arranged the distribution with considerable 
 adroitness. We have not put any thing in the first proposi- 
 tion which we think quite hopeless and desperate ; nor have 
 we left out any thing which we think very essential to the real 
 purpose which has been the guiding star in all our delibera- 
 tions. That purpose has been to secure to the harmonious 
 coalition between the Democracy and the Free Democracy 
 that ascendency in the State which they have enjoyed in the 
 Convention, and thus to put an end to the dominion of the 
 Whig party, which we pretend has been so disastrous to the 
 character, happiness, and prosperity of our ancient Common- 
 wealth. We have made the strong support the weak, so that 
 both may go through together, like a cripple on a blind man's 
 back, one supplying eyes, and the other legs. We have, for 
 instance, so greatly favored the small towns, in our system of 
 popular representation, that we hope to gain the support of all 
 the voters in them, whether Whigs or Democrats; and we 
 hope, also, to reconcile the Democracy of the large towns to 
 this injustice by the degradation of the Judiciary, and the aboli- 
 tion of the poll-tax as a condition precedent to the elective fran- 
 chise. Had we put the system of representation as a proposition 
 by itself, the Democrats in the large towns would have voted 
 against it ; had we done the same with the abolition of the poll- 
 10
 
 98 PROPOSED CONSTITUTION OF 1853. 
 
 tax, we should have encountered the opposition of the conserva- 
 tive part of the rural population. As it now is, we think we 
 shall have the votes of both. By the acceptance of the Constitu- 
 tion, we look upon the Coalition as good for at least five years, 
 so that not only will Mr. Wilson be Governor, but I shall go 
 to the Senate of the United States. These, fellow-citi/ens, 
 are the real motives which have led us to adopt this novel and 
 unexpected course. You will consider this communication as 
 confidential, because, for the sake of appearances, we shall be 
 obliged to assume a different language, and talk as if we really 
 believed what we are saying." 
 
 SILAS STANDFAST. 
 
 No. IV. 
 
 MY DEAR JOTHAM, The subject I am now upon the 
 form in which the action of the Convention is submitted to 
 the people for their ratification is rich and fruitful. I must 
 linger upon it. The whole of its beauties are not revealed by 
 a sight of the new Constitution itself. The history of its 
 conception and birth in the Convention is curious and in- 
 structive. 
 
 That body was in session for three months, as I have before 
 said. After they had been hacking and slashing at the Con- 
 stitution for several weeks, the question naturally arose in the 
 minds of many of the members, as to the shape in which 
 their labors were to come before the people, especially as 
 there were some inconsistencies in their votes, and some capri- 
 cious and arbitrary variations in matters to which one general 
 principle seemed obviously applicable. The minority mem- 
 bers discussed this subject occasionally in conversation among 
 themselves, much, however, as the passengers in a ship talk 
 about the way she is navigated by the officers and crew ; be- 
 cause it was obvious, from the course things took, that, on all 
 important subjects, the action of the Convention was fixed
 
 PROPOSED CONSTITUTION OF 1853. 99 
 
 beforehand, in some other place and at some other time ; and 
 they were only called upon to make up the work which had 
 been cut out elsewhere. Towards the end of the session, Mr. 
 Dana, for Manchester, happened to remark, incidentally, in 
 the course of debate, that, so far as he could see, the new 
 Constitution must be submitted as one entire proposition, 
 and that the alterations could not be proposed separately. 
 Upon this, Mr. Hallett, for Wilbraham, rose in his place, and 
 in his most leonine manner expressed his dissent from the 
 views of the gentleman for Manchester, and his opinion that 
 the amendments could be presented separately, and ought to 
 be presented separately, and that if the gentleman for Man- 
 chester could not do it, he could. The minority members 
 pricked up their ears at these little splinters from the main 
 body of debate, and hoped that more light might be allowed 
 to break in upon them. But their hopes were destined to dis- 
 appointment. Upon the caucus docket, that case had not then 
 been called. 
 
 Thus things went on, till, towards the close of the session, 
 a committee on revision was appointed, who were charged 
 with the duty of putting into shape all the acts of the Con- 
 vention, reconciling their inconsistencies, correcting their over- 
 sights, and moulding them into the form in which they should 
 go before the people for their ratification. That committee 
 asked and obtained permission to report in print ; and their 
 report was presented at so late a day, that it did not fairly 
 get into the hands of the members, so as to be ready for dis- 
 cussion, till the morning of Monday, August 1st, on which 
 day it had been determined that the Convention should ad- 
 journ, and on which day it did, in point of fact, adjourn. 
 Thus, only one day was given, not merely to settle the impor- 
 tant question, as to whether the several amendments should 
 be presented separately, or nearly all in one heap, but to ex- 
 amine the report of the committee, and to see how far it 
 could bear a critical analysis, how far one part agreed with 
 another, and how far it comprised the action of the Conven- 
 tion and excluded all they had declined or omitted to do. 
 The report, as printed and presented, made a pamphlet of 
 considerable size ; and it had been so hastily prepared, that in
 
 100 ILL PREPARED. 
 
 the course of Monday two or three revised editions appear ed^ 
 from time to time. A considerable part of the day was spent 
 in reading over this pamphlet, making corrections, alterations, 
 erasures, interlineations, and additions ; and, at a very late 
 hour in the evening, the Convention closed its sessions, leav- 
 ing the ink of their interlineations, and the wafers of their 
 additions, hardly dry ; and this printed document, thus be- 
 scrawled and bewafered, remained on the Presidents desk, as 
 the only evidence of the great organic law proposed to the peo- 
 ple of the Commonwealth of Massachusetts. 
 
 I will not dwell upon the unseemly haste with which a re- 
 port of such great importance, that demanded the most care- 
 ful examination and patient discussion, was hurried through 
 all the stages of debate in a few hours. I can well pardon 
 the impatience of country members, who had been gasping 
 through the heats of July, in a crowded city, to get back to 
 their cool and breezy homesteads. A farmer shut up in Bos- 
 ton, in the month of August, with his cattle lowing after him 
 in the barn-yard, and his corn rustling after him in the field, is 
 a sight to move the springs of compassion in the heart of the 
 oldest politician. But this is no sufficient apology for the 
 indecent neglect of all the time-hallowed forms of procedure, 
 the rash violation of all legislative decorum, which this 
 act of the Convention involved. 
 
 You have been a member of the General Court, and you 
 know the way in which business is done there. You know 
 that, when a law has been passed through all its stages, it is 
 finally engrossed ; that is, it is written upon parchment, as the 
 least destructible material that can be so used, and then 
 submitted to the examination of a committee, called the 
 " Committee on Engrossed Bills." When they have reported 
 that it is correctly engrossed, it is signed by the presiding 
 officers of the two Houses, approved by the Governor, and 
 then deposited in the archives of the Commonwealth, in the 
 office of the Secretary. Thus, every law and every resolve 
 passed by our Legislature may be found in the Secretary's 
 office, carefully written on parchment, without erasure or in- 
 terlineation. And the legal evidence of any statute or resolve 
 of Massachusetts, before a foreign tribunal, is a copy certified
 
 CONSTITUTION OF 1S20 WELL PREPARED. 101 
 
 by the Secretary, under the seal of the State, which copy 
 must be made from the original, in his office. 
 
 Such is the care with which the integrity of common legis- 
 lative proceedings is guarded. Surely, so grave and important 
 an instrument as a constitution is entitled to at least an 
 equal degree of consideration and respect. So thought the 
 men who sat in the Convention of 1820. Let us contrast 
 their conduct with that of their degenerate successors in 1853. 
 That Convention assembled Wednesday, November 15, 1820. 
 
 On November 30th, Judge Jackson, of Boston, moved that 
 a committee be appointed " to consider in what manner such 
 amendments in the present constitution of government of the 
 Commonwealth, as may be made and proposed by this Con- 
 vention, shall be submitted to the people for their ratification 
 and adoption, and in what manner their votes thereon shall be 
 returned, and the result ascertained." 
 
 Judge Jackson, in supporting his motion, stated that his ob- 
 ject in making this motion was to remove a difficulty which 
 had frequently occurred in the course of the debate, from an 
 uncertainty with respect to the form to which the amendments 
 agreed to by the Convention should be reduced. For his part, 
 he had no doubt of the course proper to be pursued. He 
 thought that they had no authority, under the act under which 
 they were convened, to reduce the Constitution to a new draft; 
 and if they had the power, he should not think it proper to ex- 
 ercise it. In that case, when the amended Constitution was 
 submitted to the people, they would be obliged to accept or 
 reject the whole. He thought it the most proper mode to pro- 
 pose the several amendments distinctly, so that, when sub- 
 mitted to the people, they might act upon each specific amend- 
 ment, and adopt or reject it, according to their judgment of 
 each. Otherwise, they might reject the whole, on account of 
 their objection to a particular article ; and thus they would 
 fail of their object, and all the labor of the Convention would 
 be lost. 
 
 A committee of five persons was accordingly appointed, of 
 which Judge Jackson was chairman. That committee, De- 
 cember 5th, reported five resolutions, of which the fourth is as 
 follows : 
 
 10*
 
 102 CONSTITUTION OF 1820 WELL PREPARED. 
 
 " Resolved, That all the amendments made by this Convention shall 
 be proposed in distinct articles; each article to consist, as far as may 
 be, of one independent proposition ; and the whole to be so arranged, 
 that, upon the adoption or rejection of any one or more of them, the 
 other parts of the Constitution may remain complete and consistent 
 with each other. If any two or more propositions shall appear to be 
 so connected together, that the adoption of one and the rejection of 
 another would produce a repugnance between different parts of the 
 Constitution, or would introduce an alteration therein, not intended to 
 be proposed by this Convention, such two or three propositions shall be 
 combined in one article ; and each of the said articles shall be consid- 
 ered as a distinct amendment, to be adopted in the whole, or rejected 
 in the whole, as the people shall think proper." 
 
 The fourth resolution was passed, December 8th. The oth- 
 ers were laid on the table. 
 
 On Wednesday, December 13th, Mr. Webster moved " that 
 a committee of nine members be appointed, to reduce such 
 amendments as have been, or may be, agreed upon, to the form 
 in which it will be proper to submit the same to the people for 
 ratification." 
 
 Of this committee, Judge Jackson was also chairman. 
 
 On Monday, January 1st, Mr. Varnum, of Dracut, moved 
 that the committee for reducing amendments into the form in 
 which it shall be proper to submit them to the people, be 
 instructed to report from time to time, as they shall mature 
 the business before them. 
 
 Mr. Varnum said his object was to have the report acted 
 upon from time to time, that it may be committed to an en- 
 grossing committee, in order that the Convention may not be 
 obliged to wait three or four days after all the principles of the 
 amendments shall have been adopted. 
 
 On Saturday, January 6th, Judge Jackson made a report, 
 comprising the several amendments, substantially in the form 
 in which they were finally submitted. 
 
 On Monday, January 8th, and Tuesday, January 9th, the 
 report was discussed and accepted, the exact form of the 
 amendments settled, two copies thereof made and attested by 
 the President and Secretary, one of which was transmitted to 
 the Governor, and the other, engrossed on parchment, was de- 
 posited in the Secretary's office, and then the Convention ad- 
 journed.
 
 THE TWO COMPARED. 103 
 
 Thus you see that the Convention of 1820, which sat fifty- 
 five days only, Sundays included, settled on the twenty-third 
 day of their session the important principle that their several 
 amendments should be submitted separately, and that they had 
 three days to discuss the language of the several amendments. 
 
 The Convention of 1853, sitting three months, had only one 
 day in which to settle the principle and shape the forms, and 
 that day the last day. 
 
 But this is too plain to be further discussed ; so let me call 
 your attention, my dear Jotham, to one or two other strange 
 and curious facts. There are, at this moment, no means of 
 making legal proof of the amended Constitution : that is, no 
 such means as are known to the laws and sanctioned by the 
 usages of our Commonwealth. There has been no copy en- 
 grossed and deposited in the office of the Secretary, to be 
 referred to in verification of its provisions. The original and 
 parent instrument is itself a pamphlet, with erasures, interlin- 
 eations, and appendages. The Constitution the most im- 
 portant and sacred of all secular codes is not treated with 
 the respect paid to a resolve to pay a man fora horse that was 
 lost in the Shays rebellion. And again, that original, such as 
 it is, is in no official and responsible custody, such as is known 
 to the law. No man at this moment can know, in the legal 
 sense of the word, where that instrument now is. I presume 
 it is in the keeping of one of the three gentlemen who sus- 
 tained, respectively, the offices of President and Secretaries of 
 the Convention. Personally, I have full confidence in the 
 integrity of those gentlemen ; I believe that each and all of 
 them are incapable of tampering with the work of the Con- 
 vention, or of making any changes other than those which 
 were scrawled or wafered before midnight on the first day of 
 August last. But the law trusts nothing to personal integrity 
 or personal character. It appeals to the official conscience in 
 all cases ; it requires official verification. Let me illustrate 
 this. You will admit that this Commonwealth never saw a 
 more perfect embodiment of truth, than is presented in the 
 person of the eminent magistrate now presiding over its 
 Supreme Court. The water with which he was baptized was 
 taken from the very well in which Truth lives. And yet not
 
 104 VALUE OF FORMS. 
 
 a judgment of his own court could be proved by his oath 
 upon the stand. There must be an official copy, certified by 
 the clerk, under the seal of the court. 
 
 And now, my dear Jotham, I beg of you to ponder these 
 things. You will observe that this indecorous and rash course 
 of the Convention was the necessary result of their determi- 
 nation to present so very large a part of their alterations in 
 one proposition ; because, of course, they were obliged to wait 
 till the last moment, till every thing had been done, in 
 order to know where to put each change, and how to distribute 
 their precious emendations so cunningly as to force their ac- 
 ceptance. You may not feel so much as I do on this point. 
 You have not, I suppose, the habit of considering how often 
 forms and phraseology are important. But everybody must 
 feel hurt and indignant at this coarse and reckless disregard of 
 the old decorums and established decencies of proceeding. 
 When any man tells you that forms are of no consequence, 
 set him down for either a shallow or an unprincipled person. 
 Forms and substance are often as closely blended as body and 
 soul in man. On this point, let me tell you a story, which 
 shall close this long letter. 
 
 Once upon a time, the foreign ambassadors residing in Con- 
 stantinople agreed to dine together, and each to contribute the 
 national dish of his country. The English ambassador was 
 to furnish a plum-pudding. So he wrote the recipe, so 
 much flour, so much sugar, so much suet, so many raisins, to 
 be boiled so long, and in so much water. When the dinner 
 was going on, and pudding time had arrived, a cry was heard 
 of " Room for the English ambassador's dish ! " and four stout 
 servants appeared, reeling and panting under the weight of an 
 enormous tureen, filled with a dark-colored liquid substance, 
 of the consistency of gruel. " Alas ! " said the ambassador, " I 
 forgot the bag." What the bag is to the pudding, such are the 
 forms of liberty to its spirit. The cooks of the Convention 
 have boiled their pudding without the bag. Will the people 
 swallow their sickening plum-porridge ? 
 
 SILAS STANDFAST.
 
 SESSIONS OF LEGISLATURE. 105 
 
 No. V. 
 
 MY DEAR JOTHAM, I now proceed to examine some of 
 the particular changes and amendments adopted by the Con- 
 vention, not in any methodical order, but just as they happen 
 to occur to me. 
 
 They have taken away from the Governor and Lieutenant- 
 Governor their respective titles of His Excellency and His 
 Honor. This is a change of little consequence ; and it is 
 quite as well to drop these prefixes, the fashion of which has 
 passed away. Titles of honor are somewhat out of date, like 
 wigs and knee-breeches. No man of sense will value such a 
 showy handle to his name, and we hope, perhaps somewhat 
 rashly, that no fool will ever be Governor of Massachusetts. 
 
 They have provided that the pay of the Legislature shall 
 cease at the end of one hundred days in any one session. 
 This was a good subject to talk about, and a considerable 
 amount of declamatory gas was evolved in the course of the 
 debate, and some jokes, rather small for their age, let off upon 
 the length of our sessions, and the length of our speeches. 
 But is it not a rather trivial and undignified act ? We pro- 
 claim to the world, that we cannot find here in Massachusetts, 
 with all our schools, our churches, our intelligence, and our 
 morals, a body of three or four hundred men, who can be 
 trusted to do their legislative work by the day, but that we 
 must bind them, as we do a lazy mechanic, by a contract, that, 
 if they don't finish their job on a certain day, they are to get 
 no pay for any time beyond. This looks to me like defiling 
 our own nest. If we want to have our legislation done cheap, 
 why not offer it, as they do the contracts for supplying the 
 army and navy of the United States, to the lowest bidders. 
 Suppose we authorize the Governor to advertise for proposals 
 from contractors, to engage to furnish a gang of three or four 
 hundred able-bodied men to do our legislation, paying them 
 so much by the job. That would be only carrying out the 
 principle contained in the limitation of the session to one 
 hundred days.
 
 106 SESSIONS OF LEGISLATURE. 
 
 The increasing length of our sessions a great nuisance 
 is owing to three distinct causes. First, the great increase of 
 the State in wealth and population, which both multiplies 
 and magnifies the action of the Legislature. Second, the 
 fact that so many of the members live at home, instead of 
 boarding for the time in Boston, and go out and come in upon 
 the railroads, and. care little how long the session may last, 
 while they are so well off. This habit contracts the hours of 
 business, and no measure of importance can be acted upon 
 before ten in the morning, or after four in the afternoon, 
 without leading to a long debate on a motion to reconsider 
 for the benefit of the absentees. And, lastly, the absurd 
 magnitude of the lower House, which makes business crawl, 
 and groan, and creak, like a huge, overloaded wagon in 
 muddy roads. Making laws with four hundred heads, and 
 with talking tongues in at least half of them, is like driving an 
 omnibus with six horses through a crowded town. Your team 
 is always getting entangled ; you have to make constant stops, 
 and you are lucky if you don't get overturned. Of these 
 three causes, the first two cannot be helped ; the last can ; but 
 the quacks of the Convention have only made the evil worse, 
 as I shall show you hereafter. They have cured the patient 
 of a cold, and left him with a fever. 
 
 But the chief objection to this effort to restrict the length of 
 the sessions is, that it will not prove effectual. If a man or a 
 State is going to save a little money by a shabby act, let 
 them take good care that they save their money : otherwise, 
 they will have the shabbiness and nothing to show for it. It 
 will be a mortgage, without an estate. You will observe that 
 the language of the amendment is, " No compensation shall 
 be allowed for attendance of members at any one session, for 
 a longer time than one hundred days," but there is no pro- 
 vision that there shall not be more than one session in a single 
 year. Now the Governor has, by the present Constitution, 
 and will have by the new one, if adopted, the power to call 
 an extra session, whenever the welfare of the Commonwealth 
 shall require. If, therefore, he thinks, or pretends to think, a 
 Legislature have left important duties unfinished, at the end 
 of one hundred days, and they have refused to work at noth-
 
 EXECUTIVE COUNCIL. 107 
 
 ing a day afterwards, the Governor will assuredly call an extra 
 session. This very thing, in fact, has recently happened in the 
 State of New York, where they have a similar provision in 
 their Constitution. You may say that public opinion would 
 forbid such a way of getting round the will of the people. 
 To this I reply, Then why not let public opinion take care of 
 the whole matter ? 
 
 The new Constitution provides that the Legislature " shall 
 in no case decree a divorce, or hear and determine any causes 
 touching the validity of the marriage contract." This pro- 
 vision is well enough, but it is wholly unnecessary. They 
 might as well have provided that the Legislature should not 
 set the Frog Pond, in Boston Common, on fire, or act plays 
 in the rotunda of the State-House. By the uniform usage 
 of a long period of time, as well as by positive statute enact- 
 ments, the Supreme Court has had, as it certainly should have, 
 jurisdiction in all questions of marriage and divorce. Every- 
 body understands this ; everybody is content with it; and any 
 attempt on the part of the General Court to usurp a power, 
 which, within the memory of man, they have not exercised, 
 would be as repugnant to public sentiment as if they should 
 sit as a tribunal for the trial of cases of murder or treason. 
 So we may let this provision pass without further comment. 
 It is neither good nor bad ; it is only a clean chip in a basin 
 of soup. 
 
 As I told you before, I don't mean to follow any particular 
 method or order, in dealing with the new Constitution, but to 
 take up each subject as the humor seizes me. This letter, 
 especially, I intend to make up of scraps and fragments, like 
 a picked-up dinner on a washing-day. 
 
 You are aware that the Executive Council has been re- 
 tained. It had something of a run for its life ; the committee 
 reported against its being continued ; and the chairman, Mr. 
 Hallett, supported this conclusion zealousy, ably, and elabo- 
 rately. But after an interesting debate, the Convention voted 
 to keep the body, but to change its organization. Their num- 
 ber is reduced to eight, and instead of being chosen by the 
 Legislature, on a general ticket, they are to be elected by the 
 people in single districts. This change seems to me injudi-
 
 108 EXECUTIVE COUNCIL. 
 
 cious. I see no objection to the present mode of election, 
 and I never would make a change, unless there were some 
 good reason for it. A seat in the Council Chamber is a very 
 respectable and honorable post, but not one which either 
 rouses or gratifies a soaring ambition. The atmosphere of 
 the place is a little sleepy; perhaps somewhat after-dinnerish, 
 even in the forenoon. It would be a very good place for you, 
 my dear Jotham. Your judicial gravity of countenance, and 
 your excellent habit of silence, would make you a shining 
 light in that quiet constellation. A body like the General 
 Court seems to me very well suited to make the proper selec- 
 tion of Councillors ; and I do not know of any better argu- 
 ment to support this proposition, than the fact that they have 
 always chosen them well. I have in my mind's eye the pic- 
 ture of a model Councillor ; a man of excellent, sound, quiet 
 sense, about fifty years old, weighing from one hundred and 
 eighty to two hundred pounds, with a deliberate utterance, a 
 safe judgment, and a large watch-chain, well-polished boots, 
 with a slight creak in them, a black-satin waistcoat, rounded 
 into a comely curve, and a grave, prosperous, eight-per-cent. 
 sort of a manner. But if you devolve the election upon the 
 people, you will not be so likely to have men of this stamp. 
 You will be more likely to get what are called popular men, 
 active, noisy, political partisans, who make themselves con- 
 spicuous by their earnest continuance in button-holding, and 
 by their facility of public speaking, the cheapest and poor- 
 est of talents ; men with small judgment and large self-esteem, 
 who will not be able to sit still, or hold their tongues, and 
 who will be as much out of place in the Council Chamber 
 as a dancing dervish in a Quaker meeting, or a barber in a 
 nunnery. 
 
 Besides, there is an obvious propriety in electing the Coun- 
 cillors on a general ticket. The Governor, Lieutenant-Gov- 
 ernor, and Council make up a sort of family party, where the 
 discussions are faithful and wise, but intimate and familiar. 
 Their relations are, or should be, somewhat confidential. The 
 Governor should feel perfectly at ease when advising with 
 them. It is desirable and indeed the theory of the Consti- 
 tution supposes that the members of the Council should
 
 GOVERNOR. 109 
 
 be of the same political opinion with the Executive ; and, in 
 point of fact, I believe this always has happened to be the 
 case, with the exception of a year or two. But now, inas- 
 much as it is proposed that the Governor shall be chosen by 
 a general vote of the State, and the eight Councillors by the 
 vote of the eight separate districts, it is plainly possible for 
 one party to have a majority in the whole State, and yet the 
 other party to have majorities in five districts. In such an 
 event, there would be a majority against the Governor in the 
 body to which his nominations are submitted for confirma- 
 tion. 
 
 If the persons composing this majority are unscrupulous 
 political partisans, as they very likely would be by pop- 
 ular election, they would reject every nomination, how- 
 ever pressing the necessity, or however inconvenient the va- 
 cancy. The Supreme Court might be without a Chief Jus- 
 tice for twelve months, and the State prison without a 
 warden. Rogues might be untried, and murderers unhung. 
 Mackerel might go unbranded, and beef and pork escape in- 
 spection. The very wheels of the stage-coach might stick fast 
 in an opposition bog. And even if there should be a majority 
 of the Governor's friends in the Council, it can hardly ever fail 
 that there should be two or three political opponents; and 
 what will be their position ? That of spies in an enemy's camp. 
 They will bring with them an atmosphere of suspicion and dis- 
 trust. The poor Governor may then bid farewell to the quiet 
 mind. All his sayings and doings will be watched, distorted, 
 and remembered. They will be laid up to be used as ammu- 
 nition in future political contests. No decorous gubernatorial 
 jokes will ever hereafter enliven the grave wisdom of the 
 Council Chamber, or paint a dignified smile on official cheeks. 
 No easy chat will ever soothe the austerity of executive toils. 
 There would be danger in that. All communications must 
 be curt, laconic, and lapidary. Nothing must be said which 
 may not be reported in an opposition newspaper. I do not 
 think the Governor of Massachusetts holds a very enviable 
 office, under the present system. He gets much abuse, and 
 little influence or gratitude. He has to go to public dinners, 
 and make speeches after them ; to review troops on very 
 11
 
 110 
 
 THE SECRET BALLOT. 
 
 unquiet horses ; to have a great deal of unsolicited advice 
 thrust upon him ; to be insulted by anonymous letters ; to 
 have his time eaten up by swarms of bores ; and in every 
 appointment that he makes, to create twenty bitter enemies. 
 But make the contemplated change, and we shall have to re- 
 vive an obsolete law, which imposed a fine on any one who 
 should refuse to serve as Governor, after having been elected 
 thereto. We shall hardly find a white man to take it ; and 
 may have occasion to commend the provident forecast of the 
 Convention, which left the door of the office open to our col- 
 ored brethren, by providing that a man might be Governor of 
 Massachusetts who is not a citizen of the United States, j 
 
 SILAS STANDFAST. 
 
 No. VI. 
 
 MY DEAR JOTHAM, You have heard much, of late, about 
 the secret ballot and self-sealing envelopes : indeed, you might 
 say that you had heard of nothing else. One would suppose, 
 from the zeal with which this measure has been pressed, that 
 the connection between constitutional liberty and gluten was 
 as close as that between taxation and representation. Per- 
 sonally, I do not feel so strongly on this subject as many of 
 my political friends. I am well content with the law as it 
 now stands, allowing the voter to use an envelope or not, as 
 he pleases. I mean, in any event, to let everybody know how 
 I vote ; that is, everybody who feels an interest in knowing. 
 Nor do I believe that any party will gain or lose, or that the 
 result of any election will be affected, by any particular method 
 of depositing votes. I dislike the arguments by which this 
 measure is supported, more than I do the measure itself. 
 
 I am a Whig, and therefore am supposed not to know any 
 more about the people than a Highlander does about a knee- 
 buckle ; but I have a much better opinion of my fellow-citizens 
 of Massachusetts, than to suppose that they need the protec-
 
 ITS FALSE PRETENCES. Ill 
 
 tion of such a law. I think great injustice has been done, 
 both to labor and capital, in the discussions upon this subject. 
 I do not believe that the voters of Massachusetts are afraid to 
 express their convictions at the ballot-box. Had such want of 
 confidence in the manliness of our people been uttered by 
 Whig politicians, would not the stump speakers of Democracy 
 have roared themselves hoarse with vindication and denuncia- 
 tion ? Would not the " spirits of our fathers " have been 
 called upon at least one thousand times, to repel such charges 
 against their sons ? 
 
 There has been a great deal of cant and humbug and mock- 
 turtle sentimentality in the debates on the subject. Pictures 
 have been drawn more pathetic and tear-compelling than a 
 rope of Wethersfield onions of poor, conscientious voters, 
 forced by some cruel capitalist to vote against their convic- 
 tions, rather than deprive their children of bread. Towards 
 all such narratives my heart is as hard as Pharaoh's. I do not 
 believe a word of them. Such drafts are not honored at my 
 counter. When I hear these stories, my impulse is to answer 
 them with an expressive gesture, to apply the end of my 
 right thumb to the tip of my nose, and extend the hand with 
 the fingers apart. You have read everybody has read 
 the Pickwick Papers. You remember Mr. Job Trotter, who 
 was always weeping like a watering-cart, but whose lachry- 
 mal pumps were never set agoing except to get himself out 
 of a scrape or somebody else into one. Whenever this demo- 
 cratic pathos is brought out, whenever a political Job Trot- 
 ter begins to blubber, and to flourish his pink pocket-handker- 
 chief, I am disposed to say, like the indignant Sam Weller, 
 " What are you melting with now ? the consciousness of 
 willany ? " 
 
 The Secret Ballot Law is the political child of Mr. Amasa 
 Walker, an honest and amiable man, but as credulous as he 
 is honest, and as visionary as he is amiable. In 1850 he was 
 chairman of a joint legislative committee, which heard evi- 
 dence and made a report upon this subject. One day this 
 committee got hold of the tail of a tremendous story, a story 
 of a forty-bomb-shell power, that was going to blow the 
 whole Whig party sky-high. The hero of it was the sexton
 
 112 THE SECRET BALLOT. 
 
 of Brattle Street Church, in Boston. He was described as 
 standing near the polls, on election day, with a tear in his eye 
 and a vote for Bancroft in his hand, not daring to deposit it 
 till encouraged by a brave-hearted Democrat ; and the next 
 day he was turned out of his place. And who do you think 
 was the black-hearted tyrant who turned him out, as the 
 story went on to say? Why, Deacon Moses Grant; a man 
 known to you, known all over the State, for his virtues, 
 his goodness, and his worth. Now there are some things that 
 cannot be believed, because they are too ridiculous; and this 
 story about Deacon Grant is one of them. You might as 
 well try to make the people in Boston believe that General 
 Washington ever promised an office to one man and gave it 
 to another, that Old Put run away from a fight, and hid 
 himself in a smoke-house, that Rufus Choate ever made a 
 dull speech, or Stephen C. Phillips a short one, that John 
 Van Buren ever spoke half an hour and said nothing black- 
 guard, that Horace Greeley ever appeared in white-kid 
 gloves and patent-leather boots, or any other monstrous 
 and impossible invention. It is hardly necessary to add, that 
 the whole story turned out, on inquiry, to be without a shadow 
 of foundation. 
 
 There are two good reasons which make me doubt all these 
 stories about the oppressions of capital and the wrongs of 
 labor. In the first place, if a rich man were disposed to make 
 a tyrant's use of his wealth, he would not dare to do it. I 
 never was in the city, town, or village, in which public opin- 
 ion would not frown indignantly and successfully upon such 
 an abuse of power. In the second place, the interests of men, 
 their selfish instincts, which you may always rely upon as 
 certainly as upon the force of gravity, will prevent such con- 
 duct as the Secret Ballot Law is aimed against. Take, for 
 instance, my own case. The man that I employ to copy my 
 papers is an Abolitionist, a woman's-rights man, a believer in 
 the potato gospel of St. Graham, a Gome-outer, in short, 
 every thing that I am not. But then he writes an excellent 
 hand, he brings home his work at the very moment he prom- 
 ises, and is moderate in his charges; I therefore employ him, 
 and shall continue to employ him, and care as little about his
 
 DEGRADES MANHOOD. 113 
 
 opinions as I do about where he buys his ink or his pens. So 
 the tenant of one of the houses I have charge of is one of the 
 noisest and most pestilent Democrats that ever shouted in a 
 caucus or strutted in a torch-light procession. But then he 
 pays his rent punctually and takes good care of the premises, 
 and that is all I inquire about. A paying Democrat is a bet- 
 ter tenant than a non-paying Whig. 
 
 Many persons lay claim to public sympathy on this head, 
 under false pretences. John Muggins, for instance, works in 
 a machine-shop. He is a Democrat ; but he is also lazy, 
 drunken, worthless, and ill-tempered. He is dismissed from 
 his employment on account of these bad qualities. Muggins 
 straightway becomes a martyr. He is a victim of a cruel 
 and aristocratic faction. He has had the courage to vote for 
 Boutwell when his employer voted for Winthrop, and there- 
 fore he has lost his place. The bread is taken from his mouth, 
 because he has dared to exercise the proud privilege of a free- 
 man. Great is the stir in the tents of the unterrified. Mug- 
 gins becomes another Morgan. Henry Wilson discourses of 
 Russian serfs, and of Francis Bowen and the North Ameri- 
 can Review. Butler's soul is disquieted within him, and the 
 ears of his hearers suffer accordingly. 
 
 I have another objection to the secret ballot, and it is a 
 practical objection, which is, that it cannot be effectual, in the 
 cases for which it is intended, without the most degrading decep- 
 tion on the part of the secret voter. The object of the law is 
 to enable a man to conceal his vote. But a man is not a 
 Whig or a Democrat because he votes in a certain way ; but 
 he votes in a certain way because he is a Whig or a Demo- 
 crat. The act of voting is but one way of expressing opin- 
 ions which, in some form or other, the voter is constantly let- 
 ting out. Whenever it is an object to find out how a man 
 votes, it can be done, unless he covers himself, from top to toe, 
 with a cloak of falsehood. You remember the actor in one of 
 Dickens's stories, who entered into the part of Othello with so 
 much spirit that he blacked himself all over whenever he 
 played it. So a man cannot have the protection of the secret 
 ballot unless he blacks himself all over with lying. He must 
 vote one way and live another. He must set a guard upon 
 11*
 
 114 THE SECRET BALLOT. 
 
 his lips and his face, and never speak a true word nor look a 
 true look. 
 
 Bat suppose, after all, by way of argument, that the result 
 of some close struggle, in some particular place, shows that 
 there has been treachery in the camp, and a Whig capitalist, 
 who has many voters under him, determines to institute a 
 rigid inquiry among his hands. He summons one of them 
 a suspected voter into his presence, and says to him, directly, 
 " John, how did you vote yesterday ? " Now there are three 
 ways in which John, who, pretending to be a Whig, has voted 
 the Democratic ticket, can meet this question. He may tell 
 the truth ; in which case, he is discharged, and the secret 
 ballot will have done him no good. He may refuse to answer ; 
 but his employer interprets his silence into a confession of the 
 truth, and acts accordingly. He may tell a downright lie, and 
 say. he voted the Whig ticket. In this case, you have made 
 the secret ballot do its work, but have you not paid pretty 
 dearly for your political whistle ? 
 
 You are a man of truth, my dear Jotham : you were a boy 
 of truth. I have not forgotten the flogging you got because 
 you would not tell who painted the master's horse pea-green, 
 and yet would not say you did not know who did it. How 
 proud I was of you on that day ! prouder than if you had 
 been the best scholar that ever blushed before a committee, or 
 spouted at an academy exhibition. There never was a time 
 when you would have purchased the success of your party or 
 your candidate by a lie. The triumph of any party is of less 
 consequence than that the people of Massachusetts should be 
 a truth-loving community. A State has no right to degrade 
 the morals of its subjects, in any way. Think of a com- 
 munity's deliberately encouraging falsehood, tempting men 
 into untruth, setting a trap for double-dealing, putting a 
 bounty upon prevarication ! 
 
 We live in a world of imperfections. I have read of a man 
 in Virginia, who, noticing that the squirrels ate only the out- 
 side rows of fields of corn, said he would have a field with no 
 outside rows. But on earth we cannot have a field of corn 
 with no outside rows. It may be possible in heaven. 
 
 In our country the pursuit of wealth is the absorbing interest.
 
 VOTERS PROTECTED. 115 
 
 What are the dreams and visions of all the boys in your town ? 
 Why, to go to Boston, or New York, or South America, or 
 China, or California, and get a great deal of money, to ride 
 in a carriage, to live in a four-story house, with Brussels 
 carpets in every room, to wear the handsomest gold watch 
 that money can buy, to go to the Museum, to have a 
 knife with fifteen blades. When everybody is thus struggling 
 and burning to be rich, when, in point of fact, so many do 
 become rich, it is possible that there may be now and then 
 a bad man disposed to abuse the power that wealth gives him. 
 And I do not know that you can help this by any legitimate 
 remedy, that will not insure a positive evil, in order to guard 
 against a contingent abuse. 
 
 You are aware that we have a special statute provision for 
 the protection of the poor voter. By a law passed by the 
 General Court, in 1852, it is made a criminal offence, punish- 
 able by fine and imprisonment, to attempt to influence voters 
 by bribes, threats, or promises of employment. I like a law 
 of this kind. A rich man that meddles with the political con- 
 science of the laborers whom he employs, who bullies men 
 into voting one way, or punishes them for voting another, is 
 not only a tyrant, but a blockhead. He is at once odious and 
 contemptible. He is as stupid as King Log, and as mischiev- 
 ous as King Stork. He is doing what he can, in his paltry 
 sphere, to bring on a time when the different classes of society, 
 instead of working together for the common good, like beavers 
 in a meadow, or bees in a hive, will be fighting together and 
 mutually destroying each other, like so many Kilkenny cats. 
 You and I are not rich, but we have something to lose in a 
 universal row ; and I feel towards one of these money-laden 
 donkeys much as you do towards a woodchuck among your 
 cauliflowers, or a strange dog in your sheep-pasture. Punish 
 him as you will ; punish him where he is most sensitive ; take 
 away his money by fines ; make him ridiculous, and hold him 
 up to the jeers and laughter of his intended victims, just as 
 you nail a hawk on your barn-door to refresh the spirits of 
 your hens and turkeys. Revive the pillory for his special 
 benefit ; order the sheriff to tar and feather him in a grave 
 and orderly manner ; paint his nose sky-blue, and in fast
 
 116 NOT FOR A CONSTITUTION. 
 
 colors, so that it shall not wear off till the next election. Do 
 what you like, he will have no sympathy from me. 
 
 But even if you claim the expediency of the secret ballot 
 as a preventive or remedial measure, it has no claim to 
 come into the Constitution. In the first place, it is a 
 matter of detail or form, and a constitution is a collection of 
 rules and principles. Governor Boutwell said, on one occasion, 
 in the Convention, that they should not submit to the people 
 every truth which they might regard as correct and proper in 
 itself, but only those truths which were to be regarded as so 
 important as to justify their being incorporated into the Con- 
 stitution. I like to quote from Governor Boutwell when he 
 is right. You will take none of his language. He uses the 
 emphatic word truths to denote the propositions which belong 
 in a Constitution ; and this is just the right word. 
 
 In the next place, it is a party measure, the result of a 
 party struggle, and the Constitution is no place on which 
 to suspend party trophies. A perfect constitution would be 
 an aggregation of truths to which all are ready to give their 
 assent; because a constitution is meant for the protection of 
 all. The best constitution is that which contains the smallest 
 amount of disputed propositions ; or, in other words, that is 
 the best constitution which reflects the least amount of par- 
 tisan or temporary feeling. When political parties begin to 
 deal with constitutions so as, through them, to accomplish 
 party ends, and maintain party ascendency, the first step has 
 been taken towards disorganization and revolution. The 
 Constitution is not a football, to be kicked to and fro, be- 
 tween the feet, and in the dust of contending parties. You 
 may put an argument on this subject in the shape of a di- 
 lemma, which is unanswerable. The secret ballot will or 
 will not be sustained by the public sentiment of Massachu- 
 setts. If it be sustained, it may safely be left on the statute- 
 book, because there will be no disposition to repeal it. If it 
 be not sustained, it ought to be left on the statute-book, so 
 that it may be repealed. 
 
 And now I want to call your attention to one curious fact, 
 which is, that by the new Constitution envelopes are to be 
 used in national, state, county, and city elections, but not in
 
 QUALIFICATIONS OF VOTERS. 117 
 
 town elections. What do you suppose was the reason for this 
 purely arbitrary distinction, this distinction without a differ- 
 ence ? I think you will be puzzled to answer this question, 
 after taking your time for it, after looking into the fire, and 
 out of the window, and up to the ceiling, and rubbing your 
 left shin, as is your custom when you are puzzled. I can 
 answer it for you, but 1 will not now, because my letter is long 
 enough, and because there are one or two other similar incon- 
 sistencies, and I want to wait till I can put them all together, 
 and show you the family likeness in all. 
 
 SILAS STANDFAST. 
 
 No. VII. 
 
 MY DEAR JOTHAM, By the present Constitution, no per- 
 son can vote in any election held within the State, unless he 
 shall have paid, by himself or his lawful representative, some 
 state or county tax, which shall, within two years next pre- 
 ceding such election, have been assessed upon him, in some 
 town or district of the Commonwealth. 
 
 By the new Constitution, the payment of a tax is not re- 
 quired as a condition precedent to voting in the election of 
 any national or state officers. 
 
 By the laws of Massachusetts, as you are well aware, per- 
 sons who are not possessed of any taxable property pay only 
 a poll-tax, which can never exceed the sum of one dollar and 
 fifty cents annually, and may be, and often is, much less. 
 
 By the proposed change, the elective franchise will be ex- 
 tended to a certain class of persons who cannot, or will not, 
 pay this slight poll-tax. 
 
 This change in the qualification of voters rests upon what 
 I understand to be a Democratic doctrine, that every full- 
 grown, featherless biped, who wears a hat instead of a bonnet, 
 has a natural right to vote ; and that to exact the payment of 
 a poll-tax, as a condition precedent to the exercise of the elec-
 
 118 QUALIFICATIONS OF VOTERS. 
 
 tive franchise, is to force a man to buy that to which he has a 
 free right, and also to bestow upon property a privilege which 
 belongs to manhood. Let me examine this doctrine, that 
 every man has a right to vote, simply because he is a man. 
 
 In the first place, let me apply to it a test which walks 
 directly into your own house, through your front door. Your 
 wife my excellent sister Martha has more sense under her 
 nightcap than you have under yours, and you know it, my 
 dear Jotham ; and I have always honored you for your manly 
 recognition of your wife's intellectual superiority. You owe 
 your respectable position in life, in part, to her admirable un- 
 derstanding, and your willingness to walk by its light. Now, 
 will you please to tell me how it happens thatyow have a nat- 
 ural right to vote, and she has not ? I will give you all the 
 time you ask to consider this question, and grant you permis- 
 sion to consult all the oracles of Democracy, from Thomas 
 Jefferson to George Bancroft ; and, at the end, you will have 
 to give it up as a bad job. If man, as a human being; has a 
 natural right to vote, we are guilty of the grossest injustice in 
 saying that woman shall not vote. The only ground on which 
 we can put her exclusion from the elective franchise, consistently 
 with justice, is, that the duties imposed upon her by the family 
 relation are incompatible with the discharge of public func- 
 tions, the function of voting included ; and that, as the former 
 are of primary importance, and the latter of secondary, the 
 latter must give way. Thus women are denied the right of 
 voting, because a great majority of men, and a great majority of 
 women, are of the opinion that their value as women, as wives, 
 and as mothers, will be impaired by their becoming voters and 
 mingling in the strife of politics ; so that the highest interests 
 of society exact this renunciation at their hands. 
 
 Take another illustration from your own household. There 
 is your oldest son, William, who is twenty years old and a 
 Senior in college. You are proud of that boy, and well you 
 may be. He has the figure and bearing of a man, and a 
 man's maturity of mind and strength of character. But he 
 cannot vote, simply because the State, which is compelled to 
 fix some precise age for it, has determined that a man must 
 have lived twenty-owe years, and not a minute less, before he
 
 ELECTIVE FRANCHISE A TRUST. 119 
 
 can enjoy the privilege. So felons in the State prison, and 
 paupers in the almshouse, are deprived of the power of voting, 
 which they once possessed. 
 
 Thus you see that the State the aggregate wisdom and 
 conscience of the whole community withholds the right of 
 voting from one class of human beings entirely ; in another, it 
 postpones the power of exercising it to a certain period ; and 
 it takes it away from two other classes, after having once be- 
 stowed it upon them. Now, if society has the right to make 
 these various distinctions, it clearly has the right to make dis- 
 crimination among human beings, of the masculine gender, 
 who are twenty-one years and upwards, and neither felons nor 
 paupers. 
 
 Thus we are led to the conclusion, that the elective franchise 
 is a trust, or privilege, which may be bestowed or denied, accord- 
 ing as the interests of the State and the well-being of the whole 
 community may require. 
 
 Now, supposing (what is certainly true) that the State has 
 the right to deny the privilege of voting to those who have not 
 paid a tax within two years, is it expedient to exercise that 
 right ? 
 
 There are few laws or rules which do not or may not work 
 hardship sometimes. It is their very nature to do so, it can- 
 not be helped. There are few laws, therefore, which may not 
 be attacked from a sympathetic point of view. But sympathy 
 is not always a safe, nor even a controlling, motive in legisla- 
 tion. The well-being of the people is the highest law. I dare 
 say that the present rule may bear hard upon here and there a 
 poor laboring man, burdened with a large family, who gives 
 up the right of voting because it is sorely inconvenient for 
 him to pay a poll-tax. Poverty is to me a sacred thing. No 
 sneer or scoff of mine shall ever light upon the poor man's 
 head. That would be to beat a cripple with his own crutch.* 
 But I also do dare to say, that, in spite of individual hardship, 
 the interests of the State arejhe best secured by the present con- 
 
 * Mr. Eames, of Washington, one of the oldest members of the Convention, a 
 member of the Convention of 1820, and a highly respectable man, said he never 
 heard a man complain of paving a poll-tax.
 
 120 WHO SHALL VOTE. 
 
 stitutional provision ; and that a good citizen should submit to a 
 rule of exclusion, salutary and expedient on the whole, though it 
 may be hard in his particular case. 
 
 You must remember that laws are never made for excep- 
 tional cases. We legislate by classes and for classes, and not 
 for here and there an individual. I have no question, that 
 there are many paupers at this moment in Massachusetts, who 
 have the understanding and the moral worth which would 
 qualify them to vote, who have been reduced to the necessity 
 of public support by sickness or inevitable misfortune ; and 
 certainly no men have a greater interest in the State than they 
 have, for their very existence depends upon it. And yet pau- 
 pers do not vote, because, taking them as a whole, the inter- 
 ests of society are deemed to be best subserved by excluding 
 them. In legislation, all who are in the same boat must go 
 the same way. 
 
 The above conclusion, as to the expediency of retaining the 
 present constitutional provision, is in some measure the result 
 of observation. The real qualifications to be claimed in voters 
 are moral and intellectual ; the State endeavors to secure such 
 voters, and such alone, as have a fair amount of sense and 
 worth ; and if the right of voting is made dependent upon the 
 payment of a poll-tax, it is because experience has shown, that 
 in the long run, and as a general rule, the personal qualities 
 which entitle a man to vote are not commonly to be found in 
 those who do not pay this very small contribution to maintain 
 the order and well-being of society, whether from inability to 
 do so, or, what is oftenest the case, from unwillingness. For, 
 of the persons now excluded from voting by reason of the non- 
 payment of a poll-tax, a very large majority, in my opinion, is 
 made up of those who do not choose to pay it; and that those 
 who cannot pay it form a very trifling percentage ; and I say 
 further, that a man who will not pay it, who will not exercise 
 the small self-denial requisite to pay it, has not the moral qual- 
 ities entitling him to vote. 
 
 These may not be popular doctrines, but they are not the 
 less true and important for all that Stump speakers do not 
 carry them about in their saddle-bags. If I were a candidate 
 for the General Court, I might fail of my election if it were
 
 PURITY OF ELECTIONS. 121 
 
 known that I held such opinions. I pray you, therefore, to say 
 nothing about it out of your own household, and put rny letter 
 into the fire when you have read it. These old letters, that 
 remember what their writers have forgotten, are great nui- 
 sances to growing politicians. 
 
 But, further, I object to the proposed change, because it 
 breaks down the distinction that should be carefully main- 
 tained between the virtuous and conscientious poor, who, from 
 a sense of duty, and out of their want, and not their abun- 
 dance, contribute their mite to the State, and the idle and 
 profligate poor, who feel neither the duties of men nor the 
 duties of citizens ; 
 
 Because, while thus thrusting the elective franchise upon 
 those who have not earned it, do not deserve it, and do not 
 want it, its value will be lessened, and the number of those 
 who do not vote at all now alarmingly large will be 
 increased ; 
 
 Because, in the cities and large towns, at least, it will aim 
 a blow at the efficiency of the principle of registration. At 
 this moment, a receipt from the city or town treasurer is the 
 evidence on which the right to have one's name on the voting- 
 list rests. Take that away, and how are the officers charged 
 with that duty to know how to distinguish the resident from 
 the stranger? We shall be flooded with voters who have no 
 right to vote. 
 
 I feel strongly upon this subject. The most dangerous dis- 
 eases of popular governments have been those the seat of 
 which is in the ballot-box. Here the most formidable mischiefs 
 have begun and spread. And they all grew from this root, 
 from the headlong zeal of struggling political partisans to gain 
 some immediate and present end, without regard to the effect 
 upon the instruments thus used. I have read shocking sto- 
 ries about elections in other States ; of the wholesale and 
 unblushing corruption of voters, and of the scenes of brutality 
 and violence at the polls. If half those stories are true, may 
 God avert such doings and such scenes from the soil of Mas- 
 sachusetts ! But if our elections have been pure, if they have 
 been decently conducted, if they have been fair expressions of 
 the popular will, the cause is to be sought in the securities 
 12
 
 PLURALITY RULE. 
 
 and immunities which we enjoy, and which those States do 
 not. And can you wonder that I feel uneasy at the prospect 
 of losing one of these securities ? 
 
 In my letter on the secret ballot, I called your attention to 
 the fact, that that mode of voting did not extend to town elec- 
 tions. Please now to take note, for future reference, of a sim- 
 ilar gross inconsistency upon the subject of my present letter. 
 A person who does not pay a poll-tax may, under the new 
 Constitution, vote in the election of any national or state 
 officer; but not in the election of any city or town officer. 
 This, too, I lay aside for future examination. 
 
 SILAS STANDFAST. 
 
 No. VIII. 
 
 MY DEAR JOTIIAM, I propose in my present letter to dis- 
 cuss the plurality rule, or principle, as it is applied in the new 
 Constitution. And I have a few steps to take before I come 
 to the stairs. 
 
 The egg from which the Constitutional Convention was 
 hatched was laid in the General Court of 1852. The people 
 had voted, in 1851, that they would not have a Constitutional 
 Convention. But the friends of the people, the exclusive, 
 extra friends of the people, came to the conclusion, either that 
 they did not know their own minds, or that they would change 
 them in the course of a twelvemonth. Accordingly, not daunt- 
 ed by their rebuff, and with a perseverance worthy of the saints, 
 the Coalition Legislature of 1852 determined to put anew to 
 the people the question which they had answered in the neg- 
 ative two months before. Had a Whig Legislature thus 
 presumed upon the ignorance or fickleness of the people, 
 had they thus, after an unfavorable verdict, demanded a new 
 trial before the same jury, what an airing of vituperative 
 epithets we should have seen on the lines and fences of Democ- 
 racy ! But it is comforting to behold what the people will
 
 PLURALITY RULE. 
 
 take at the hands of their friends. The voters of Massachu- 
 setts, instead of showing any resentment at being treated like 
 a coquettish damsel, whose first faint " No " is a mere gentle- 
 man usher to a " Yes," vindicated the confidence that had 
 been reposed in their changeableness, ate their own votes 
 without butter or sauce, and accepted in 1852 what they had 
 rejected in 1851. As the people are always right, it follows, 
 that the Constitution did not need any amendments in 1851, 
 but did need one hundred and fifty thousand dollars' worth in 
 1852. What a degree of wear and tear it must have been ex- 
 posed to in the interval, to get so much out of repair ! 
 
 But to go back to the General Court of 1852. In the House 
 of Representatives, January 7th, it was ordered that a com- 
 mittee be appointed, to consist of one from each county, with 
 such as the Senate may join, to take into consideration the 
 propriety of amending the Constitution, so as (among other 
 things) "to make the plurality system apply in ALL elections for 
 state officers, by the people" 
 
 In due time, a joint committee was appointed, and, on the 
 21st day of February, made an elaborate report, in which 
 (among other things) may be found the following remarks on 
 the plurality system : 
 
 " In the sixth place, we recommend the adoption of the plurality 
 system in more of our elections. To what extent the Constitution 
 should be revised on this subject, and how far the system shall be 
 carried, will of course remain for the Convention to settle. Nor do 
 we now express any opinion as to which would be most expedient, if 
 the system is to be adopted, to apply it to the first, or only the sec- 
 ond or some subsequent election. But the time and money which is 
 now expended, and the party animosity which is engendered, by the 
 numerous and unsuccessful attempts to elect the various state, county, 
 and town or city officers, have become grounds of repeated and loud 
 complaints in all portions of the Commonwealth. This part of the 
 Constitution should undergo a thorough revision ; it should be done, not 
 rashly, but with great care and deliberation." p. 13. 
 
 " The present cumbersome, formal mode of organizing the govern- 
 ment should be abolished The election of Secretary of the 
 
 Commonwealth, Treasurer and Receiver -General, Auditor of Ac- 
 counts, and Executive Councillors by the people, with an application
 
 124 
 
 MULTIPLICATION OF PARTIES. 
 
 of the plurality principle to these officers, as well as to the Governor, 
 Lieutenant-Governor, and State Senators, would do much to remedy 
 this evil." p. 14. 
 
 This report is signed by Whiting Griswold, Anson Burlin- 
 game, Moses Wood, Isaac Davis, R. C. Brown, Martin Bri- 
 ant, John B. Nichols, Samuel C. Pomeroy, William W. 
 Bacon, William Cleverly, and John W. Simonds. Of these, 
 Messrs. Griswold, Burlingame, Davis, Cleverly, and Simonds 
 were members of the Convention. 
 
 Now, you prefer, and I prefer, and all men of common 
 sense brought up in Massachusetts prefer, the majority rule, 
 whenever and so long- as it is practicable and possible. The 
 rule that the majority shall govern, lies at the foundation of all 
 democratic governments. No man will give it up without 
 reluctance, or without a struggle. So long as it works well, 
 no question would ever arise upon the subject. So much for 
 the rule as a matter of principle. 
 
 Now look at it historically for a moment. During a long 
 period it sufficed for the government of Massachusetts. Your 
 memory goes back to the days of the Federal and Democratic 
 parties; and there must have been a solid satisfaction in 
 those days, when there was a fair stand-up fight between two 
 sets of principles and two sets of men, when every one saw 
 his foes drawn up in front of him, and his friends ranged along 
 his side, and there was no danger of a fire in the rear, or of 
 having his flank turned by false allies. In those days they 
 knew no more about third parties than they did about spiritual 
 rappings or women's conventions; and a man no more threw 
 away his vote, than Daniel Boone would have thrown away 
 his fire in an Indian fight, with a red-skin behind every tree. 
 Whoever had a plurality had a majority also. 
 
 But a change came over the spirit of our politics. That 
 change began with the Anti-Masonic party, about thirty years 
 ago, the seed of which was the blood of Morgan. In time, 
 other eccentric and portentous bodies intruded themselves into 
 the regular political system, and disturbed its movements. 
 There was the Liberty party, the Temperance party, and the 
 Native American party ; and now we have the Hunkers and 
 the Barnburners, the Hard Shells and the Soft Shells, the
 
 PLURALITY RULE INEVITABLE. 125 
 
 Free Democrats and the Democrats who are not free ; so that 
 our political contests, instead of being a pitched battle be- 
 tween two lines, are like an Irish row at Donnybrook Fair, 
 where every man's shillelah is against every other man's 
 head. 
 
 The result was, that the majority rule would not work. 
 You could not elect your Governor, or set the wheels of state 
 agoing. What, then, was to be done ? And this question 
 reminds me of a pertinent anecdote. A clergyman was once 
 called to administer the consolations of religion to a lady, 
 who had had the misfortune to lose one of her children. He 
 found her in by no means an evangelical state of mind. She 
 was rebellious, inconsolable, mutinous. She was deaf to the 
 voice of consolation, and repulsed the soothings of sympathy. 
 The good man had something of the old Adam in him, and 
 his patience gradually gave way ; and after a burst of clamor- 
 ous and unreasonable grief, he said to her, quietly, " Well, 
 madam, what are you going to do about it ? " 
 
 This story often comes to my mind ; not only in public 
 affairs, but in that little " kingdom of me " that a quaint old 
 writer speaks of. The inexorable question, What are you 
 going to do about it ? is always in my way. It is a great 
 iron wall, that goes up to the sky and down to the centre ; I 
 cannot get over it, or around it, or under it. There is but one 
 thing that I can do, and that is, submit. That lesson I am 
 learning, and I flatter myself that I am making some progress 
 therein. At least, I do not knock my head against the wall, 
 as I used to. 
 
 Now, apply this question to the subject before us. You 
 must have a Governor, and you cannot have him by a majority 
 rule, and what are you going to do about it? The Constitu- 
 tion our present Constitution answers this question. It 
 provides that, in the failure of the popular choice, the Gov- 
 ernor and Lieutenant-Governor shall be chosen, and the va- 
 cancies in the Senate shall be filled, by the joint action of the 
 Legislature. I need not tell you the particular modes ; be- 
 cause the difficulty is so constantly happening, that every one 
 is, unhappily, familiar with the constitutional remedy. But 
 here the Constitution stops. It takes no heed to the va- 
 12*
 
 126 PLURALITY RULE INEVITABLE. 
 
 cancies in the House of Representatives. It takes it for 
 granted, that a quorum of sixty members will always be 
 elected, and rests contented with that. 
 
 Thus, you will observe, that, as regards the Governor, 
 Lieutenant-Governor, and Senators, the Constitution pre- 
 scribes an alternative mode of election. In the failure of a 
 choice by a majority of the popular votes, it requires them to 
 be elected by a purely arbitrary and artificial method. It 
 says, in effect, in regard to these officers, that they must be 
 had, whether or no ; and if you cannot have them in one way, 
 you must have them in another. 
 
 Now, the positions I have been coming to are these : that 
 where the Constitution requires us, in case of need, to throw 
 aside the majority rule and take up some other, we are bound 
 to consider the comparative value of different substitutes, and 
 take that which comes nearest to the majority rule, that 
 which is simplest and best ; and that a plurality of votes is a 
 better expression of the popular will than the present mode of 
 election by the Legislature. 
 
 Take the case of the Governor. There are three candidates 
 in the field, and the whole number of legal voters is one hun- 
 dred and eighty thousand. But the highest candidate has 
 only fifty thousand votes ; the second has but forty thousand ; 
 and the third has but thirty thousand. You perceive, there- 
 fore, that sixty thousand voters have not voted at all, and that, 
 if you carried out the majority rule to its absolute extent, you 
 should require the successful candidate to have ninety-one 
 thousand votes. In point of fact, no Governor of Massachu- 
 setts was ever chosen by a majority of all the existing voters. 
 Thus, the first modification of the abstract majority rule is to 
 allow the officer to be chosen by a majority of all the persons 
 actually voting. 
 
 But to go back to the case I have just supposed, where 
 there are three candidates, and there is no choice ; what are 
 you going to do about it, inasmuch as you must have your 
 Governor? I submit it to you, I submit it to any candid 
 person, that the best way is to take the man who has the 
 highest number of votes, because you have hereby the strong- 
 est expression of the popular will that it is possible to obtain.
 
 PARTY TRICKS. 
 
 127 
 
 But by sending all the three to the General Court, it often 
 happens that he who has the smaller, or even the smallest 
 number of votes, whom the people least want, is made 
 Governor. This is wrong, unjust, fraudulent. The Constitu- 
 tion never intended it. But it has been done again and 
 again. 
 
 Now, what have the Convention done? They have divided 
 the State into forty Senatorial districts, and provided that 
 Senators be elected by a plurality of votes. So far, so good. 
 Could we have a chance to vote on this alone, we should all 
 of us be thankful to take it. 
 
 But then they have provided, also, that not only the Gov- 
 ernor and Lieutenant-Governor, but the Secretary, Treasurer, 
 Auditor, and Attorney-General (the election of whom is 
 transferred to the people), shall all be chosen by a majority of 
 popular votes, and that in default thereof they shall all be 
 chosen by the General Court, in the same way that the Gov- 
 ernor and Lieutenant-Governor now are. And they have also 
 allowed the Legislature to modify this rule, with a restriction 
 as to the time when their law shall go into effect, postponing 
 its action for a year. In my judgment, this course of the 
 Convention was a mere party trick. It was in palpable dis- 
 regard of the teachings of the last ten years, and of the 
 known and reasonable wishes of the people. It was an ob- 
 stinate adherence, for party purposes, to a rule the majority 
 rule, I mean which they knew could not be applied. It 
 was contrary to the express promises and professions of the 
 very men through whose agency, and urgency to procure the 
 plurality system, the Convention was, among other reasons, 
 called. The public sentiment is, as they know, unequivocally 
 in favor of applying this system to all State elections; and 
 the people had a right to expect, from the report of the legis- 
 lative committee, from which I have quoted, that it would be 
 so applied. Those who voted for the Convention voted for it 
 with this expectation. They have been cajoled, deceived, 
 cheated, and jilted by their pretended friends and lovers, and 
 they have now a fair right of action against the signers of that 
 report, for breach of promise of plurality. The object of the 
 whole has been to give the leading offices of the State to
 
 128 PARTY TRICKS. 
 
 men who can get neither a majority nor a plurality of the 
 votes of the people, to men who can get only a minority of 
 the votes, in short, to THEMSELVES. 
 
 When I was a boy, one of my schoolfellows got up a lot- 
 tery. The tickets were ninepence apiece, and quite a tempt- 
 ing list of prizes was offered. Many tickets were sold, but 
 the prizes were not forthcoming. When the manager was 
 remonstrated with on account of the delay, he said they had 
 concluded not to draw. So the plurality rule was one of the 
 prizes in the Convention lottery, but when the managers got 
 together, they concluded not to draw. 
 
 I am well aware that this new Constitution allows the 
 Legislature to modify the action of the Convention on the 
 subject of majority and plurality, so far as state officers, repre- 
 sentatives, and city and town officers are concerned. They have 
 shifted their responsibility, and opened a back-door of escape, 
 in a similar manner, upon the system of representation. To 
 these acts of the Convention I reply : 
 
 First, that they had no legal right to do so. The members 
 of the Convention were hired, at a great price, to amend the 
 Constitution, and they had no right to devolve their work 
 upon another set of public servants. It is a well-known prin- 
 ciple, that an agent or attorney cannot depute his powers to 
 another, unless authorized to do so by the instrument from 
 which his own authority is derived. 
 
 Second, that we have now a mode of amending the Con- 
 stitution by the action of two successive Legislatures and the 
 confirmation of the people, which is a far better method 
 than the vote of a single Legislature. 
 
 Third, that a Legislature chosen under the outrageous and 
 iniquitous system which the Convention have devised, will be 
 no fair expression of the popular mind, and that the same 
 motives which were controlling impulses in the Convention 
 will be controlling impulses in the Legislatures elected under 
 the new Constitution if it be adopted. 
 
 SILAS STANDFAST.
 
 TOWNS AND CITIES. 129 
 
 No. IX. 
 
 MY DEAR JOTHAM, Let us now look back a little. I 
 have asked you to bear in mind the capricious action of the 
 Convention in regard to the secret ballot and the tax qualifi- 
 cation, and their disregard of public sentiment and their own 
 previous professions in respect to the plurality rule. I told 
 vou that I would endeavor to find a reason for conduct which 
 
 V 
 
 seemed so unreasonable, to explain what seemed so inex- 
 plicable. I am now ready to do so, for I have now got my 
 birds in a line, and can fire at them together. 
 
 In the application of the secret ballot, a distinction is made 
 between cities and towns. A maybr is chosen by envelopes, 
 and a selectman by open and unfolded votes. A man that 
 lives on one side of a street must go to the polls, armed and 
 equipped with brown paper and gluten ; while his neighbor, 
 on the opposite side, has only his vote to deposit. But the 
 proper distinction between a city and a town is only in degree, 
 and not in kind. It is simply this : that, after a place has 
 reached a certain size, it is more convenient to have a mayor 
 and aldermen to look after its interests than a board of select- 
 men. The voters are men of the same infirmities, and ex- 
 posed to the same influences, in both cases. In principle, 
 every argument in behalf of the secret ballot which suits the 
 pavements suits also the fields. If the secret ballot is bad in 
 the village, it is bad in the city ; if good in the city, it is good 
 in the village. Town meetings are often the scenes of the 
 most angry contests ; the passions of men are most kindled 
 by what lies nearest them ; tempests in tea-pots often rage so 
 as to blow the lid clean off. There was once a town now 
 a city which was convulsed to the centre upon the question, 
 whether a certain bell should be rung at a certain hour. The 
 war of the bell was nearly as exciting as that of the bucket, 
 in Italian history. There was no bloodshed, but a great deal 
 of ink-shed and a vast deal of breath-shed. 
 
 The only argument urged in support of this irrational and
 
 130 
 
 INCONSISTENCY. 
 
 invidious distinction is the argument from inconvenience. It 
 is said, that, as town officers are elected singly, it would be 
 extremely troublesome to deposit, open, and count so many 
 sealed envelopes. To this there are several answers. In the 
 first place, there is no law, and no reason, why towns, after 
 choosing a moderator and town clerk, should not elect their 
 other officers on one ticket ; and, in point of fact, many, if not 
 most, of the large towns do so. Where the town is small 
 and the voters few, it would not be inconvenient to count the 
 votes though in envelopes. In the second place, it is from 
 the friends of the law that we are always hearing it pro- 
 claimed that principles should be maintained in spite of incon- 
 veniences in the application of them ; and it does not become 
 them to blow hot and cold with the same mouth. In the 
 third place, the most zealous friends of the secret ballot deny 
 its inconvenience, without exception or qualification. I like 
 to get my powder out of the enemy's magazine ; and there- 
 fore I shall quote a few sentences on this point from Mr. Am- 
 asa Walker, and with the more pleasure because he is an 
 honest man, and I believe that he believes what he says. He 
 said in the Convention : " / can conceive that it will greatly 
 facilitate the business of town meetings, when the people get 
 accustomed to it. In voting for selectmen, for example, a GEN- 
 ERAL ticket might be used. All the names might be put upon 
 one ticket, and the candidates be all elected at once. Asses- 
 sors, too, might be voted for in the same manner. It will en- 
 able people in the country, in their town meetings, to elect offi,~ 
 cers more rapidly and more conveniently" Now, Mr. Amasa 
 Walker is the lather of the secret ballot, and ought to know 
 what it is. 
 
 In the same capricious and arbitrary way, the Convention 
 have dealt with the relation between the payment of a poll- 
 tax and the right to vote. The non-payer may vote in any 
 state or national election, but not in any city or town election. 
 He may vote for a governor, but not for a mayor ; he may 
 vote for a representative in Congress, but not for a selectman. 
 Why is this distinction made ? Why do not the sympathies 
 of democracy go with the poor voter to the end ? If his ex- 
 clusion is wrong in the one case, how comes it to be right in
 
 INJUSTICE. 131 
 
 the other ? Why give him in one month what he must pay 
 for in another ? A plain, poor man comes to the polls in 
 November, and deposits his vote, and no questions are asked. 
 He comes again in December or March, and the door is 
 slammed in his face. Why is his reception so different in the 
 two periods ? I have heard it said that democracy is " the 
 supremacy of man over his accidents." But this is the su- 
 premacy of accidents over the man ! 
 
 And on what ground is this distinction defended ? It is 
 this : that the votes thrown at town meetings and municipal 
 elections act upon the appropriation and expenditure of money, 
 and that the man who has not contributed towards the gen- 
 eral fund is not fit to have a voice in the disposal of it. That 
 is, a man may take part in the government of the State or 
 common country, and have a voice in the most momentous 
 questions, the most vital and comprehensive interests, and 
 yet, when it comes to the spending of a few dollars, he shall 
 not be trusted. Then his lips are sealed, and his hands are 
 tied. This, mind you, is the Democratic doctrine. It is put 
 forth by the friends of the people, who are ever exalting the 
 virtues of the poor, and vituperating every Whig writer and 
 speaker who ventures to doubt whether the men now excluded 
 from voting are absolutely an army of saints and martyrs, 
 marching, as Dickens says, "right slap to heaven, and rto 
 questions asked." 
 
 Look at the injustice and absurdity of the exclusion. The 
 poor man's interest in town affairs and especially, if he 
 have children, in school affairs is immediate, direct, and 
 personal ; in state and national concerns, comparatively re- 
 mote and indirect. Thus, by keeping him out where he most 
 wants to go, you wound him where he is most sensitive. Be- 
 sides, a town meeting has a certain domestic, almost a family 
 character. Exclude a man from this, and you set a sort of 
 brand upon him which all his neighbors must needs see. 
 They are asked to the feast of business, but he is forbidden to 
 come. These little things, which touch men in their most 
 intimate and familiar relations, are the most keenly felt. 
 Every man likes to hold up his head among his neighbors. 
 My life upon it, if you should ask the poor men in your town
 
 132 PARTISAN CONVENTION. 
 
 which they would value the more, the right of voting in 
 town meetings, about common affairs and school affairs, or 
 the right of voting for state officers, nine out of ten will tell 
 you, the former. They are more interested in them, they 
 understand them better, they are better fitted to vote about 
 them. 
 
 And now, my dear Jotham, I ask you again, why the 
 Constitution, in which, more than any other human code, 
 uniformity and consistency are requisite, is such a piece of 
 tessellated work, with here a bit of black stone and there a bit 
 of white; here a bit of sympathy and there a bit of thrift; 
 here a bit of tenderness and there a bit of rigor ; here a smile 
 of invitation and there a frown of repulsion ; here a dab of 
 gluten and there a fold of paper. 
 
 And why were the Convention so indifferent to the de- 
 mands of public sentiment on the subject of the plurality rule ? 
 why did they cling to an inconvenience which twenty-five 
 States have abandoned ? why did their leaders eat their own 
 words ? why did they load a gun to the muzzle with profes- 
 sions, and then refuse to pull the trigger ? 
 
 When we talked about the proposed Convention, last year, 
 I told you that a Convention to be called under such condi- 
 tions struck out from the fiery struggle of heated parties, 
 like a spark from the collision of flint and steel must of ne- 
 cessity be a partisan Convention, reflecting the passions of the 
 State, and not its reason ; and that in such a body you could 
 no more deliberate with caution and wisdom upon constitu- 
 tional reform, than you could experiment upon the composi- 
 tion of gunpowder in the midst of a battle. It was on that 
 ground, mainly, that I voted against the Convention. 
 
 My fears were prophetic. The Constitutional Convention 
 proved a partisan body ; and its partisan zeal was inflamed by 
 the consideration that, while the Coalitionists had a majority 
 in the Convention, the Whigs had a majority in the Legisla- 
 ture, which sat a fortnight after the Convention had assembled, 
 and in the same hall. The first act of the Convention 
 their vote upon the form of notice to the town of Berlin 
 was a paltry and contemptible expression of party passion. 
 The whole Commonwealth of Massachusetts set in motion, to
 
 PARTY CONSTITUTION. 133 
 
 compel the little town of Berlin to use self-sealing envelopes ! 
 The posse comitatus called out to catch a truant boy ! Sher- 
 man's Artillery summoned to smoke a woodchuck out of his 
 hole! And as was the beginning, so was the end. In the 
 purposes at which they aimed, in the motives which guided 
 them, the Convention was an eminently consistent body, 
 
 a party Convention to the last. 
 
 Now, upon the subject of party, I profess to be no better 
 than my neighbors. I am a party man. I call a party an 
 association of men, of substantially the same way of thinking 
 in politics, who act together in order to accomplish certain 
 desirable political ends, which, otherwise, cannot be attained. 
 I believe in the necessity of party organization, party disci- 
 pline, and party drill. And, in the proper place, and at the 
 proper time, I have no objection to a rough-and-tumble party 
 fight. I am ready to give and to take, to hit and to be hit, 
 
 to lay on and not to flinch. But a Constitutional Conven- 
 tion is no place for parly zeal or party contests. They are as 
 much out of place there as jokes at a funeral, or a country 
 dance in the broad aisle of a church. 
 
 You are aware of the present coalition of parties in the State 
 of Massachusetts. This is a fixed fact, or what somebody 
 calls a perfect fact; or, as the French say, an accomplished 
 fact. This Coalition had a majority of about a hundred in 
 the Convention ; and that was a very stubborn fact. They 
 had every thing their own way, and that was a very comforta- 
 ble and exhilarating state of things for them, at least. And 
 so it came to pass that they took counsel among themselves, 
 how they could so amend the Constitution as to extract from it 
 the means of preserving and transmitting their own power in 
 lineal descent. They were to make a staff which should sup- 
 port the steps of the Commonwealth, but at the same time 
 have a dagger inside, with which to slay the Whig party. So 
 there were two sets of motives at work, which sometimes 
 crossed each other's path and stood in each other's way to 
 such a degree, that more than once the machinery got out of 
 gear and threatened to come to a dead lock. To drive a tan- 
 dem team of motives is not very easy. Where you are keep- 
 ing one eye on the pot over the fire, that it may not boil over, 
 13
 
 134 PARTY CONSTITUTION. 
 
 and another out of the window, that the pigs may not get into 
 the garden, a perplexing conflict of duties will arise, unless 
 there be a perfect understanding between the pot and the pigs, 
 which is a rare thing. 
 
 Now the Coalition is stronger in the small towns, as a gen- 
 eral rule, than in the cities ; anoj thus, in the Convention, the 
 small towns were to be petted, and coaxed, and bribed, and 
 bought. This was especially the case in the apportionment 
 of representatives, and it was the same in other matters. The 
 "rural districts" basked ia their smiles, but the cities lan- 
 guished in the shadow of their frowns. A tone of sentiment 
 was attempted to be created by comparison between the two, 
 always unfavorable to the cities. Boston, especially, was 
 decried, disparaged, ridiculed, and denounced. A sneer or 
 fling at Boston was always a hit in debate ; especially if it 
 fell from the lips of one of her own sons. The flavor of injus- 
 tice was heightened by the sauce of ingratitude. 
 
 But the farmers in the small towns and "rural districts," 
 as you well know, do not like the secret ballot, because it is 
 not manly, and because it is a new-fangled innovation which 
 they do not understand. And they are opposed to the aboli- 
 tion of the poll-tax, as a condition precedent to voting, be- 
 cause they know that in that event they shall lose all that is 
 now collected from that source. So the farmers were satis- 
 fied with having both of these changes kept out of their town 
 meetings and town deliberations ; and as to the poll-tax, the 
 cities were obliged to be included, because not even the spec- 
 tacles of the Convention could find any distinction between 
 towns and cities on this point. 
 
 So the party eagerness to preserve the Coalition explains 
 the capricious and contradictory action of the Convention on 
 the subject of plurality. It takes three parties to make a po- 
 litical coalition, as certainly as it takes two men to make a 
 bargain. But the plurality rule would make it as impossible 
 for a third party to live, as for a rat to breathe in an exhausted 
 receiver. The leaders of the Convention knew this, and re- 
 coiled from the gulf of self-immolation, as they drew near to 
 it. Apply the plurality rule to State elections, and the Coali- 
 tion loses its whole stock in trade and must needs shut up s/iop.
 
 TRADING FOR OFFICES. 135 
 
 While the majority rule is preserved, and the three parties 
 continue, and the existence of the rule insures the contin- 
 uance of the parties, the Governor, Lieutenant-Governor, 
 and the other State officers made elective by the people under 
 the new Constitution, will all, at last, come, by a standing 
 abuse, contrary to the seeming purpose of the Constitution, 
 to be elected by the Legislature ; and then will recur, and be 
 prolonged to the end of the chapter, these edifying scenes of 
 barter, traffic, and distribution, which reflected so much dis- 
 honor upon the State of Massachusetts in 1851. Then we 
 shall see, year after year, a knot of men in one wing of the 
 State-House, sitting on a platform made at Buffalo, and an- 
 other knot of men in another wing of the State-House, sitting 
 on a platform made at Baltimore, and a set of office-brokers 
 running between the two to negotiate and bargain. There 
 will be a price-current of offices, as there is of fancy stocks. 
 One day a United States Senator will be worth a Governor 
 and an Attorney-General ; and the next, only a Governor and 
 an Auditor. Honors and offices, which should imply and 
 prove popular confidence and reward public service, will be 
 distributed according to the. will of a few trading politicians, 
 and the Legislature will be merely called upon to register their 
 edicts. 
 
 And now, my dear Jotham, I am going to prove what I 
 have said ; and I am going to prove it by putting two wit- 
 nesses of the opposite party on the stand. 
 
 The debate in the Convention on the plurality question 
 began on the 24th day of May, on the report of the Commit- 
 tee on Elections, applying the plurality rule to all elections 
 by the people. The debate continued, with some few inter- 
 ruptions of other subjects, till the first day of June, when, on 
 motion of Mr. Butler, the whole subject was referred to a 
 committee of one from each county, which committee was 
 appointed the next day. 
 
 That committee did not report till the 27th day of June ; 
 and their report embraced substantially the provisions which 
 the Convention finally adopted. 
 
 The subject was not reached in the order of debate till the 
 18th day of July. In this debate Mr. Schouler moved an
 
 136 TRADING FOR OFFICES. 
 
 amendment, applying the plurality rule to the Governor, Lieu- 
 tenant-Governor, Secretary, Treasurer, Auditor, and Attorney- 
 General. On the 19th day of July the question was taken on 
 the amendment in the Convention, and one hundred and fifty- 
 nine members voted for it, and one hundred and fifty-nine 
 against it, and the President then voted in the negative. Here 
 it may be remarked that the one hundred and fifty-nine who 
 voted in the affirmative, represented a constituency greater by 
 one hundred and fifty thousand souls than those who voted in the 
 negative. The resolves reported by the committee, amended 
 in respect to representatives to the General Court, were 
 passed July 22d. 
 
 And now I propose to call my witnesses ; and the first one 
 I put upon the stand is Mr. Caleb Stetson, a member of the 
 Convention from Braintree, an old-fashioned Democrat, who 
 has never bowed the knee to the Baal of Coalition, a man of 
 practical sense, a successful man of business, honest and up- v 
 right in all his ways and works. He was in favor of the plu- 
 rality rule in State elections. On the 22d day of July he 
 made a short speech in the Convention, from which I quote a 
 few sentences : 
 
 " I am free to admit, myself, that I believe that such legislation as 
 has been had in this body is disreputable ; and if I understand any 
 thing of the character and feelings of the people of Massachusetts, 
 
 they will never sanction the tergiversation of this body Sir, 
 
 the changes which have been made upon this floor, from time to time, 
 by the leaders of the Free Democracy of this body, and by those who 
 are called the True Democracy, have been such, that I think, had any 
 spectator been in the gallery, viewing the doings of this Convention, 
 they could not but suppose that the brains of some of such leaders 
 were hung upon a weathercock. It appears to me that certain mem- 
 bers have lost sight of the purposes for which they were sent here. 
 They appear to have but one purpose, and that is, the making of po- 
 litical capital for themselves, and to lose sight entirely of the objects, 
 or the purposes, for which this Convention was called." 
 
 My next witness is Mr. Edward L. Keyes, who sat in the 
 Convention for Abington, a Free-Soiler and seceder from 
 the Whig party, a man of fervid spirit and impetuous tern-
 
 VICAR OF BRAY. 137 
 
 perament, an impassioned and powerful speaker, of a 
 mutinous mood, not always docile to party dictation, and 
 sometimes disconcerting his friends by his explosive rhetoric. 
 Immediately after the tie vote I have mentioned on the plu- 
 rality question, on the 19th day of July, and the President's 
 negative vote, he said as follows : 
 
 " I must confess, however, my surprise at the vote just taken ; and 
 while I am filled with surprise, I must also be allowed to express my 
 gratification at the fact, that this Convention has been saved from last- 
 ing disgrace by the casting vote of the Chairman ; for had we lost 
 this question, what should we not have lost ? Every thing. The Lib- 
 erty-party in the Convention would have been defeated in all the most 
 important matters ; the WHIG PARTY WOULD HAVE BEEN TRIUMPHANT, 
 
 AND IN A FAIR WAY TO HOLD THE REINS OF POWER FOR AN INDEFINITE 
 
 PERIOD. Sir, had that amendment succeeded, I would have prayed 
 Heaven that the people might have hissed the whole amended Consti- 
 tution into oblivion." 
 
 After these citations comment is unnecessary. Where a 
 prisoner pleads guilty, the case is not put to the jury. It may 
 be considered as proved, that, if you will indulge me with a 
 pun or two, the singularity of the action of the Convention 
 upon plurality, was owing to the duality of parties in the Co* 
 alition. It was a base, vulgar bargain, for party purposes. 
 So of the secret ballot : so of the poll-tax. 
 
 The Vicar of Bray, who changed his religion half a dozen 
 times in the course of his life, always maintained that he was 
 a man of principle ; and that this principle was to live and 
 die Vicar of Bray. With this interpretation, the Convention 
 were eminent and conspicuous for their devotion to principle. 
 More timid, less scrupulous spirits sometimes falter, or re- 
 trace their steps. Compunctious visitings intrude and arrest 
 progress or change direction. But not so with that body. 
 They went right on, neither pausing nor turning aside, and 
 they made a party Constitution, and not a State Constitu- 
 tion. 
 
 SILAS STANDFAST. 
 
 13*
 
 138 
 
 ELECTION OF OFFICERS. 
 
 No. X. 
 
 MY DEAR JOTHAM, In my present letter I wish to speak 
 of the changes made by the Convention in the appointment 
 and the election of certain officers. By the proposed Consti- 
 tution, the Secretary, Treasurer, Auditor, and Attorney-Gen- 
 eral are to be chosen annually by the people, by a majority of 
 votes ; and in default of choice, then by the General Court, by 
 concurrent vote,\\\ the same manner that the Governor now is. 
 At present, the Attorney-General is nominated by the Gov- 
 ernor, and the other three officers are chosen by the General 
 Court, in joint ballot. 
 
 By the proposed Constitution, Judges of Probate, Registers 
 of Probate, Sheriffs, Clerks of the Courts, Commissioners of 
 Insolvency, and District Attorneys are to be elected triennially 
 by the people of their respective counties and districts, by a 
 plurality vote. At present, all Clerks of the Courts are nomi- 
 nated by the Judges of the Supreme Court. Trial Justices, 
 newly created officers, are also elected for three years. 
 
 As to one or two of these proposed changes I am indiffer- 
 ent or doubtful ; to the rest I am entirely opposed. 
 
 lam indifferent as to the Secretary, Treasurer, and Auditor. 
 Whether chosen by the people or by the Legislature, the 
 result will be probably much the same. In either event, the 
 candidates will be selected by the managers of the respective 
 political parties into which the State may be divided, votes 
 will be controlled by party ties, the General Court in the 
 one case, and the people in the other, being only called upon 
 to confirm a caucus nomination. I am opposed, more or less 
 earnestly, to the rest. Thus as to the Attorney-General, Dis- 
 trict Attorneys, Commissioners of Insolvency, and Registers 
 of Probate, especially the first three, no good reason has been 
 given for a change. The present mode of appointment has 
 worked well ; it has secured to us faithful and competent 
 officers. I have heard of no dissatisfaction, except such as 
 was manufactured to order. And in political matters I would 
 always let well alone/ I have heard of an epitaph on a tomb-
 
 ATTORNEY-GENERAL. SHERIFFS. 
 
 139 
 
 stone, which was in these words: "I was well: I would be 
 better, and I am here." Where no inconvenience is felt, 
 where no discontent is expressed, I would not make a 
 change simply for the sake of change. 
 
 The qualifications of an attorney-general, a district attorney, 
 and a commissioner of insolvency, are professional rather than 
 political. They rest upon professional attainments, which the 
 general public can only estimate by their results, and from the 
 report of their professional brethren. The qualities which 
 enable men to discharge the duties of these offices worthily, 
 are by no means identical with such as commend them to the 
 favor of those who hold open the door of political advance- 
 ment. An executive nomination, subject to the confirmation 
 of the Council, where the responsibility is brought home, 
 is, in my judgment, more likely to secure us good public 
 servants, in these departments, than a popular choice. More- 
 over, I hold it to be unsafe to have an attorney-general de- 
 pendent on the popular will of a party, where the party 
 may be very desirous that some of its members should not 
 be prosecuted, who ought to be ; nor should I be willing to 
 have commissioners of insolvency so appointed, where in- 
 solvents are numerous, and could often influence a county 
 election, for their own purposes. 
 
 There are four sorts of officers left to be considered : Sher- 
 iffs, Judges of Probate, Registers of Probate, and Clerks of 
 the Courts. 
 
 The office of sheriff does not require any special training 
 for the discharge of its functions. The popular will may 
 make as good selections as executive appointment ; but the 
 danger is as to the effect of the proposed change upon the 
 officer himself afterwards ; and this danger is great. By the 
 present Constitution he may be reappointed : under the new 
 one he may be rechosen. His being rechosen will depend 
 upon his favor with some political party ; and that means 
 with the leaders of that political party. But the duties of a 
 sheriff should be discharged without fear or favor. He is often 
 called upon to do unpopular acts ; and the attitude which he 
 generally assumes towards the community is not of a kind to 
 awaken agreeable sensations in those whom he approaches.
 
 140 SHERIFFS. JUDGES OF PROBATE. 
 
 He will sometimes be called upon to oppose the headlong 
 current of a mob ; he will sometimes be brought into official 
 collision with men of great political influence. It is highly 
 desirable, therefore, to have a man in this place who will be 
 guided only by a sense of duty, tempered by a sense of 
 humanity. But make it his object to become popular, espe- 
 cially with politicians, let him be counting the chances of a 
 re-nomination at some political caucus, open or secret, let 
 him be anxious to gather in a stock of personal good-will, 
 and you may be sure that, in some particular emergency, in 
 some conflict of impulse and duty, he will be found wanting. 
 Remember that you need, in a sheriff, those qualities which 
 will meet rare, exceptional, and dangerous cases. His com- 
 mon and daily duties are as plain as the road to mill, and as 
 easy as eating and drinking. Anybody will serve a writ of 
 John Doe against Richard Roe, or arrest a pickpocket, or 
 carry a burglar over to Charlestown, or keep order in a court- 
 house; but, sooner or later, the test of the man's honesty, 
 firmness, and independence must be applied. The fountains 
 of popular madness are broken up, a mob is tearing down 
 a convent, or threatening to tar and feather an Abolitionist, 
 the community is set on fire by a fugitive slave case, and some 
 desperate fanatics are urging the sheriff to have the fugitive 
 taken by force from the United States Marshal, and your 
 sheriff should be a man to meet these emergencies. Taking 
 life as it is, and men as they are, in what manner are you most 
 likely to have and to keep officers of this high stamp ? Let 
 your own experience of life, your own observation of men, 
 answer this question. 
 
 Then, as to Judges of Probate. The qualifications for this 
 office are both professional and personal. The judge need not 
 be a great lawyer ; but he should be a good lawyer, so that his 
 decisions need not be often appealed from. A man may make 
 an excellent judge of probate, and not be what is called a 
 popular man ; so he may be a very popular man, and yet not 
 make the very best judge of probate. By the proposed 
 change, we shall be likely to have needy and active politi- 
 cians, rather than good lawyers and men of sound, safe, practi- 
 cal sense, talkers, rather than wise men, stump-speakers,
 
 TENURE OF OFFICE. 141 
 
 rather than cautious and conscientious magistrates. In view 
 of these considerations, in view of the fact, that from first to 
 last, throughout the Commonwealth, we have had this office 
 filled by such worthy, faithful, and competent men, I prefer 
 executive appointment to a popular choice, always at the 
 mercy of political parties. 
 
 But in all judicial posts, the tenure of office is of more im- 
 portance than the mode of appointment ; that is, the way that 
 you get a man upon the bench is not of so much consequence, 
 as the influences which act upon him when he is seated there. 
 I will not anticipate here what I propose to say when I come 
 to speak of the action of the Convention in degrading the 
 tenure of our Judges to a period of ten years, but only urge 
 such considerations as seem exclusively applicable to the par- 
 ticular class of magistrates we are now discussing. 
 
 A judge of probate stands in relations to the -community 
 which demand, above all things else, honesty, firmness, and 
 impartiality. He must be above suspicion in these respects. 
 He is constantly deciding questions of property ; and the 
 purse-vein of our people beats sensitively. He has to pass 
 upon matters where family feeling is involved, to lay his 
 hand upon chords which run back to the core of the heart. 
 At present, holding his office upon the tenure of good be- 
 havior, directly responsible only to the Legislature, who 
 may remove or impeach him, we can rely upon the best ex- 
 ercise of his best faculties. The judge of probate is now, to 
 borrow the language of the Constitution, " as free, impartial, 
 and independent, as the lot of humanity will admit." But 
 elect him for three years, make him responsible to a politi- 
 cal party and a political press, and it cannot be so. Let me 
 put a case. There is an administration account to be settled, 
 and on one side there are a poor widow and her orphan chil- 
 dren, and on the other, the administrator, who happens to be 
 a man powerful in influence with the political party upon 
 which the judge depends for re-nomination and re-election. 
 Will this judge be no respecter of persons? Will he look at 
 every item in that account with a single and a fearless eye ? 
 We read, that "a father to the fatherless, and a judge of the 
 widows, is God in his holy habitation." Will your triennial
 
 REGISTERS OF PROBATE. CLERKS. 
 
 magistrate be "a judge of the widows" in the sense in 
 which the Psalmist uses the words? 
 
 As to Registers of Probate, why should we make a change 
 when we are well off"? We have now, and always have had, 
 competent and faithful officers in these places ; and as I do 
 not believe that we are going to have our kingdom come on 
 this earth, I am shy about giving up any thing that works 
 uniformly, positively well. If you have a razor that shaves 
 well, or a scythe that mows well, or an axe that cuts well, 
 you would never think of swapping it off for a new one. 
 You would not run the risk of a change. Why not apply 
 the same rule to laws and institutions ? 
 
 The case of Clerks of the Courts is much worse. I think 
 that the action of the Convention on this head is nothing less 
 than an outrage. I use the word advisedly. It involves a 
 want of all decent, respect for the Judges, so unlike the usual 
 character of the people of Massachusetts, that nothing more 
 strongly illustrates the partisan madness of the Convention, 
 and their want of confidence even in the judges for whose 
 appointment by popular and party votes they provide. Clerks 
 are now appointed by the Judges, as they manifestly ought to 
 be. All propriety, all convenience, all decency, are in favor of 
 it. The Clerks are the agents and ministers of the Judges ; 
 the relations between them should rest upon personal con- 
 fidence. It is their duty to execute, and to execute instantly, 
 the orders, decrees, and judgments of the courts ; and there- 
 fore they ought to be under their absolute and immediate 
 control. Justice may be stopped else. The people should be 
 no more asked to choose the Clerks of the Courts, than to 
 choose the clerks in the office of the Secretary of State, or 
 the nurses in the hospital at Worcester. 
 
 But the places of the Clerks are desirable posts, because 
 they are comparatively lucrative; and therefore they must be 
 had, in order to bestow them upon greedy office-seekers. 
 They must be put into the public crib. They must feed 
 the ravenous maw of a class of men whom I look upon as 
 among the chief nuisances of the land, the trading politi- 
 cians, who, leaving their lawful calling, take to peddling 
 cheap politics about the country, writing vulgar squibs in
 
 TRADING POLITICIANS. 143 
 
 vulgar newspapers, and making speeches, half venom and 
 half froth, like the slaver of a mad dog, men who have no 
 knowledge, no principle, no decency, no truth, whose whole 
 stock in trade is a brazen front, a loud voice, and an assort- 
 ment of bad language. Would that a strong wind from the 
 mountains might blow these locusts into the sea, so that the 
 land might have peace ! There is one consideration which 
 applies to all these offices in which it is proposed to substi- 
 tute popular choice for executive appointment. As it now is, 
 we have the responsibility brought home to the Governor and 
 Council, and they are amenable [to public opinion if they 
 make bad appointments. But devolve the choice upon the 
 people, and the responsibility becomes so divided and dis- 
 tributed, that it practically ceases to exist. The choice of the 
 people in offices is like a woman's choice of a husband ; which 
 is a negative choice, and cannot go beyond the offer made. 
 So the people must select one of the candidates proposed to 
 them, while the Governor's range is unlimited. The contem- 
 plated change increases a power already too great, the 
 power of caucuses and conventions ; which really means the 
 power of a secret, irresponsible junto of political wire-pullers. 
 A convention is no more than a decorous ceremonial, in which 
 all has been previously arranged, cut and dried. The chair- 
 man of the committee who goes out to nominate officers has 
 the list of them in his pocket before he starts. The President 
 whom that committee comes in to nominate, has his speech 
 all written out and committed to memory at home. The chair- 
 man of the committee on resolutions has them ready pre- 
 pared, after careful advisement with the political managers. 
 The candidates are settled beforehand. All things are con- 
 ducted with a commendable command of countenance, which, 
 however, imposes upon none but the small boys in the gallery. 
 All the work has been done, before the meeting is gathered, by 
 a few active, cunning politicians, sitting, with closed doors, 
 around a table, without reporters and without responsibility. 
 
 When this matter was under discussion in the Convention, 
 and it seemed pretty evident how the vote would be, it was 
 asked what would be done in case it became necessary to 
 remove one of these officers, elected for three years. Sup-
 
 144 CLUMSY CONSEQUENCES. 
 
 pose he should become insane, or physically disabled, or be 
 guilty of gross misconduct, how is the public exigence to be 
 met? The committee charged with the subject took the 
 matter in hand afresh, and the Convention, under their guid- 
 ance, adopted a provision, which is so remarkable that I quote 
 it entire : 
 
 " The Governor, by and with consent of the Council, may at any 
 time, for incapacity, misconduct, or maleadministration of their offices, 
 remove from office Clerks of Courts, Commissioners of Insolvency, 
 Judges and Registers of Probate, District Attorneys, Registers of 
 Deeds, County Treasurers, County Commissioners, Sheriffs, Trial 
 Justices, and Justices and Clerks of Police Courts : provided, that the 
 cause of their removal be entered upon the records of the Council, and 
 a copy thereof be furnished to the party to be removed, and a reasona- 
 ble opportunity be given him for defence. And the Governor may at 
 any time, if the public exigency demand it, either before or after such en- 
 try and notice, suspend any of the said officers, and appoint substitutes, 
 who shall hold office until the final action upon the question of re- 
 moval." 
 
 This arrow, you will notice, comes out of a Democratic 
 quiver; but it looks to me as if despotism had sharpened the 
 point. It is true that the Governor may now remove some 
 of these officers, but it is because he appoints them, and is 
 therefore responsible for them. But he cannot remove a Judge 
 of Probate, or a Justice of the Police Court, or a Register of 
 Deeds. His power is enlarged in the direction in which it 
 ought to be diminished. I need not tell you how grossly the 
 authority here vested in the Executive may be abused, in 
 times of great party excitement, when the protection of the Con- 
 stitution is most needed, and how completely the will of the 
 people, which the authors of these changes profess to hold so 
 sacred, may be trampled under foot and annulled. 
 
 Just look at the relations established between the Judges 
 and Clerks of Court by these bungling and mischievous inno- 
 vators. The Judges must submit to have their agents nom- 
 inated by a political cabal, chosen by a political party, and 
 removed by a political Executive ! What would you say, if 
 the men that worked on your farm were hired by a town 
 meeting, and discharged by the chairman of the selectmen?
 
 DEGRADATION OF OFFICE. 145 
 
 That would not be a bit more absurd or more grotesque, than 
 the way in which the judges have been dealt with. The lat- 
 ter is as much more outrageous and indecent, as execution of 
 judicial precepts is more important than the getting in of hay. 
 
 Again, the vagueness and indistinctness of the provision 
 are as conspicuous as its ofTensiveness. The judges of pro- 
 bate, sheriffs, &c. are to be chosen on the Tuesday next after 
 the first Monday in November, for three years next following 
 the first Wednesday in the succeeding January. Now sup- 
 pose the Governor and Council remove one of these officers 
 in March, how is the office to be filled in the interval between 
 that time and November; because the substitute can only 
 hold office till the question of removal is settled ? And in case 
 of removal, shall the new officer be chosen for an entire three 
 years, or for the unexpired portion of the three years of the 
 party removed ? If you have an opinion upon these points, 
 I will trouble you for it. 
 
 At any rate, it is plain that, when the Governor in March 
 has removed the officer and the election is to come on in No- 
 vember, the officer will spend the interval in intriguing, and 
 moving the passions of his party against the Governor, so as 
 to get re-elected in spite of him, and will sometimes succeed, 
 perhaps often. 
 
 And now I proceed to close this long letter with a single 
 suggestion. The end of all these proposed changes will be, to 
 lessen the value of the several offices which they touch. Take 
 from the Governor his patronage and responsibility, and he be- 
 comes an empty ceremony. Elect the Attorney-General and 
 District Attorneys by a popular vote, and you expose them to 
 all the indecencies and virulence of our political press, to 
 the certainty of having their whole personal and professional 
 lives, and the lives of their fathers, grandfathers, brothers, and 
 first-cousins, ransacked, in the hope of finding something that 
 may be turned to account in a party contest. Men of high 
 professional standing, who alone ought to fill these offices, 
 will not consent to be dragged through the kennels of party 
 in this way, although they might be willing to have their 
 names submitted by the Governor to the Council. Your 
 candidates must therefore, if this plan be adopted, be taken 
 14
 
 146 THE JUDICIARY. 
 
 from a lower range ; from more obtuse natures ; from spirits 
 too familiar with filth to fear its contact. Thus, in different 
 ways, the value of all leading State offices is impaired. I 
 think this very unwise and mischievous. There is always a 
 competition between the general government and the State 
 governments, for the able men of the country, in which the 
 general government is always bidding higher and higher. The 
 talent of the land is more and more tending to Washington. 
 We have recently seen two State Governors resigning their 
 places, to take inferior, but more lucrative offices, under the 
 general government. Still, there are two States which have en- 
 deavored to counteract this tendency, by making State offices 
 valuable and important, and creating a high tone of State 
 feeling and State pride. These two are Massachusetts and 
 South Carolina. The consequence has been, that the influ- 
 ence of these States, throughout the country, has been propor- 
 tionately much greater than their territory or population. 
 Their policy has been wise, honorable, and successful. Shall 
 Massachusetts abandon it ? Do you want to see the cream 
 sent to Washington, and only the skim-milk left at home ? 
 This is not an obvious consideration, but to me it is a very 
 important one. I pray you to ponder it. 
 
 SILAS STANDFAST. 
 
 No. XL 
 
 MY DEAR JOTHAM, I will now turn to the action of the 
 Convention upon the Judiciary. On this subject we all feel 
 much. Respect for the law is a strong, popular instinct in 
 Massachusetts, in which you and your neighbors share; 
 and I am sure that you would never, knowingly, give your 
 hand to any change which will weaken the administration of 
 the law. 
 
 Our Judges, at present, are appointed by the Governor, and
 
 JUDGES FOR TEN YEARS. 147 
 
 confirmed by the Council, to hold office during their good 
 behavior; but they may be removed, summarily, by the Gov- 
 ernor and Council, on address of the two Houses, without 
 assigning any reason therefor; and they are also liable to 
 impeachment and dismission for cause assigned. By the pro- 
 posed Constitution, they are to be appointed for only ten 
 years; and at the end of that period may be reappointed. 
 
 This change is simple and explicit. As you see, it takes 
 but very few words to tell it. It does not look formidable, nor 
 does the thing strike the senses as dangerous. A plain man 
 goes into a court-house, and sees a grave, middle-aged gentle- 
 man, in a suit of black, listening to the arguments of counsel, 
 or charging a jury. Every thing is conducted with decency, 
 decorum, and propriety ; the sheriff maintains order ; the law- 
 yers say, " May it please your Honor," when they address the 
 court; and it is difficult for such a spectator to comprehend 
 that it is of any great importance whether a piece of parch- 
 ment, which the judge has in his desk at home, contains the 
 words " during good behavior," or " for ten years." He may 
 feel that so respectable and dignified a gentleman will behave 
 very well in either event. He may say that he cannot under- 
 stand why people should get into such a worry about what 
 they call the judicial tenure. I will tell you. 
 
 Every man that has reflection enough to get in his firewood 
 for winter, will admit that it is desirable to have the very best 
 judges that we can possibly get, for the safety of our persons 
 and character and property is intrusted to their learning, wis- 
 dom, and uprightness. In what way, then, are we to secure 
 this advantage? In the first place, we must create and main- 
 tain a tone of public sentiment which will cause the office 
 and the person of a judge to be respected. In the next place, 
 we must give the judges honorable salaries, so that fit men 
 may not feel they should be guilty of injustice to their fami- 
 lies by taking a seat upon the bench. In the third place, we 
 must give them a sense of security, so that their minds may 
 not be troubled by any uneasy apprehension for the future 
 which we can remove. The moment a man begins to worry 
 about to-morrow, his value for to-day begins to be impaired. 
 
 Now, the first and immediate effect of this proposed change
 
 148 
 
 JUDGES FOR TEN YEARS. 
 
 will be to make a seat upon the bench less desirable than it 
 is at present; and, consequently, you will be obliged to go 
 lower down on the list of the bar before you come to a man 
 who will be willing to take it. Let me illustrate this. In 
 general, the best age to be elevated to the bench is from forty 
 to forty-five ; a period when a man's place at the bar has be- 
 come fixed, and he has as much business as he ever has. 
 Suppose that a lawyer of this age, with a large and lucrative 
 practice, and a young family growing up around him, is given 
 to understand that a seat upon the bench may be tendered to 
 him. As things now stand, he will reason with himself after 
 this fashion: "It is true that, by going upon the bench, I 
 give up at least one half of my income, but then I assume a 
 post of great usefulness and respectability, and though I may 
 have to work nearly as many hours as I do now, yet my work 
 will not be so wearing, exhausting, and exciting, and I shall 
 escape much of this haunting and sleep-murdering sense of 
 responsibility. My health will undoubtedly improve. Per- 
 haps I cannot hope to keep all the business I now have, if I 
 continue at the bar, against the competition of the able young 
 men who are treading upon my heels; but a seat upon the 
 bench is a possession which I can hold so long as my faculties 
 are spared to me." The end of this self-communion is, that, 
 with a little persuasion, a flattering interview or two with the 
 Governor, a favoring intimation from the Chief Justice, 
 perhaps a little influence from one who loves her husband well 
 enough to make sacrifices for his health and happiness, he 
 accepts the proffered post. 
 
 Suppose, however, that the new Constitution should be 
 adopted, and that a lawyer of the same age and similar posi- 
 tion has the same offer made to him. He will say at once, 
 u I cannot think of taking this place. I am now maintaining 
 my family, educating my children, and, at the same time, put- 
 ting something by for a rainy day. I go upon the bench, and 
 at the end of ten years, when rny clients will have forgotten 
 me, when the discharge of judicial duties will have unfitted 
 me for resuming practice, I may be turned adrift upon the 
 world, and with very little in my pockets for ballast. I cannot 
 take one step towards the bench. I feel the hands of my
 
 INFERIORITY OF SUCH JUDGES. 
 
 children pulling me back by my coat-tails." . Thus he would 
 surely reason ; and he would reason rightly. It is of no use 
 to urge that he might, and probably would, be reappointed at 
 the end of ten years. He also might not ; and a prudent man 
 will not take the risk. 
 
 I have, as you well know, a very high respect for the judi- 
 cial office. I think one such judge as Judge Story was, and 
 Chief Justice Shaw is. is worth as many brawling politicians 
 
 like , (on the whole, I will not fill up the blank,) as 
 
 could stand between here and Connecticut River. The func- 
 tion of a judge is much higher than that of a lawyer. In the 
 practice of the law there are moral and intellectual dangers, 
 which it requires constant self-vigilance to guard against. But 
 there is nothing in the duties of a judge which does not con- 
 tribute to the best growth of the mind and character. But the 
 office of a judge is not in all respects desirable, even to those 
 who have the requisite learning and ability; for the vigorous 
 health and even temperament, without which no judge can 
 do his work with comfort to himself or anybody else, are not 
 given to all able and good lawyers. His duties are severe and 
 monotonous, a hard and steady pull, ever the same. He 
 has to work from the first day of January to the last day of 
 December, and yet not always get his work done. He must 
 give all his faculties this week to learn the details of a case, 
 which next week he had better forget. His mind is always 
 taking in and discharging cargo. And then the bad air he 
 has to breathe, and the interminable long speeches he has to 
 hear from empty and resonant bladders of the law, who, on a 
 question of a rain-water spout, begin with the deluge! It is, 
 after all, not a very tempting place ; not so tempting as I wish 
 it were. 
 
 Nay more, a seat upon the bench which it is of such vast 
 importance to have worthily filled is already growing- less 
 and less desirable. Old men will tell you, that the perso/i and 
 office of a judge are not so much respected as when they were 
 young. Old lawyers will tell you, that a seat upon the bench 
 is not the object of professional ambition that it once was. 
 The dreams which play around the pillows of our ambitions 
 young lawyers are of political, not of judicial advancement. 
 14*
 
 150 HIGH DUTIES OF A JUDGE. 
 
 Their air-castles are all built at Washing-ton. To be represent- 
 atives, senators, foreign ministers, these are the rainbows 
 painted on the clouds of their future. 
 
 The effect of such a change as the new Constitution pro- 
 poses will be, to make the judges on the bench inferior to the 
 leading lawyers at the bar ; and that would be a thing not only 
 lamentable to contemplate, but most unfavorable to the wel- 
 fare of the community, and the great ends of justice. At 
 present, when a client comes into my office, to consult me 
 about his case, I feel assured that he will have a fair trial, 
 whoever may be opposed to me ; and that whatever I may 
 have to say will receive a candid and unbiased hearing, and 
 get all the weight it is entitled to. But suppose another 
 state of things, such as surely will come, should this change 
 go into effect, and I might be constrained to say to my cli- 
 ent, "You have got a good case; the law and facts are on 
 your side ; but then it will have to be tried before Judge Slow- 
 coach, and Mr. Vivid, the great man of our bar, is opposed to 
 you ; and he owns that judge, he has got as good as a bill 
 of sale of him in his pocket ; and when he is in court, the 
 judge does not dare to say his soul is his own. I therefore 
 cannot give you any assurance that you will have a fair trial." 
 Is this a comfortable thing for a lawyer to say, or for a client 
 to hear ? 
 
 No man who wishes well to his country will ever do any thing 
 to weaken the Judiciary ; for the Judiciary, do what we will, 
 is the weakest of all the departments of government. It is 
 weaker than the Executive. it is far weaker than the Legis- 
 lative. Its natural support is in the reason and judgment and 
 conscience of the community ; but our passions array them- 
 selves on the side of the Legislature. A conflict between the 
 two is no impossible event ; and, in case of such a conflict, 
 how, according to their sympathies and affinities, would men 
 be found ranging themselves ? Around the Judiciary would 
 gather the old, the grave, and the cautious, the sickly con- 
 servatives that ought never to have been born, the old fogies, 
 that ought to be ashamed of themselves for being alive ; they 
 would stand around the bench, with their spectacles, their 
 crutches, and their walking-sticks. And on the other side
 
 JUDICIAL INDEPENDENCE. 151 
 
 would be mustered the hosts of " Young America," led on by 
 the Wilsons, the Butlers, and the Burlingames, all full of 
 youth, and passion, and strength ; and, in the shock of the en- 
 counter, what would become of the Judiciary and its 'friends ? 
 
 " Ask of the tree which the lightning has shattered, 
 Ask of the leaves which the storm-wind has scattered." 
 
 Therefore, to lower the Judiciary to make it weaker and less 
 honored is as superfluous as to increase the patronage of 
 the President of the United States, or add to the length of a 
 New England winter. 
 
 As I said in a previous letter, I think that the tenure by which 
 a judge holds his office is of more importance than the mode of 
 his appointment. In my judgment, an executive appointment, 
 during good behavior, is the very best way to get a good judge, 
 and especially the very best way to keep him good ; but, as at 
 present advised, I would prefer to have these magistrates chosen 
 by the Legislature, or the people, during good behavior, rather 
 than appointed by the Governor for a term of years ; because 
 then I should feel that, after they had begun to act in, that ca- 
 pacity^ there would be no influences upon them which would 
 impair their value as judges. 
 
 Let me quote to you here, as a sort of introduction to what 
 I am going to say, a sentence or two from our Bill of Rights, 
 a part of which I have cited before : 
 
 " It is the right of every citizen to be tried by judges as free, im- 
 partial, and independent as the lot of humanity will admit. It is, 
 therefore, not only the best policy, but for the security of the rights of 
 the people, and of every citizen, that the Judges of the Supreme Court 
 should hold their offices so long as they behave themselves well ; and 
 that they should have honorable salaries, ascertained and established 
 by standing laws." 
 
 These are simple, noble, comprehensive words. Nothing 
 can be taken from them ; nothing can be added to them. You 
 will note the connection which the Constitution recognizes 
 between the independence of the judges and " the security of 
 the rights of the people, and of every citizen." Here is the rub ; 
 the thing is touched with a needle's point. You will observe, 
 too, that the Constitution starts with an admission of human
 
 152 JUDICIAL INDEPENDENCE. 
 
 infirmity in judges, and then proceeds to guard the people, as 
 far as possible, against that infirmity. The Constitution is 
 right in both. The fact is true ; the precaution is wise. The 
 judge is, first, a man ; second, a lawyer; and, third, a judge. 
 The framers of our admirable Constitution proposed to them- 
 selves two objects in regard to the Judiciary : first, to get the 
 best possible judges ; and, second, to secure afterwards the 
 best exercise of their best judicial faculties. The proposed 
 change will do neither. It will give us judges inferior to those 
 we have always had, and will expose them to dangerous influ- 
 ences and temptations heretofore unknown in Massachusetts. 
 What is the first great quality in a judge ? Beyond all 
 question, INDEPENDENCE. He may be learned, wise, and con- 
 scientious; but if he be not independent, if he have not the 
 courage which rests upon independence, there is not the least 
 security that his good qualities will move in the right direction. 
 This is the guardian virtue, which stands at the gate and 
 keeps watch over the rest. Now, let the judge know and feel 
 that the Governor, at the end of ten years, may or may not 
 reappoint him ; suppose him also to be a man of little prop- 
 erty, and dependent for the just support of his family upon his 
 income, do you imagine that he will be perfectly indepen- 
 dent, that no shadow of apprehension, no touch of favor, will 
 ever pass over his mind ? On this point, I am well aware 
 that Democratic orators and politicians, taking counsel, doubt- 
 less, of their own pure instincts and pure associations, are apt 
 to soar to heights of transcendental disinterestedness and mag- 
 nanimity, quite out of my sight; but then I remember that on 
 the secret ballot their speech is all the other way ; for then the 
 voters of Massachusetts become very frail and dependent, and 
 must be protected against the influence of their moneyed em- 
 ployers. Judges are cut out of the same cloth as other men, 
 and I know enough of human nature to know that all men 
 should pray fervently to be delivered from temptation. If you 
 will insure me angels on the bench, with wings folded up under 
 their coats, I may cease to oppose the new Constitution on 
 this ground; but you cannot get angels to serve you in this 
 capacity; and, under the proposed change, you will not get a 
 class of men for judges that will come very near to angels.
 
 JUDICIAL INDEPENDENCE. 
 
 153 
 
 It is a stern fact, from which there is no escaping, that he who 
 controls a man's bread exerts, sensibly or insensibly, more or less 
 control over his thoughts and his will. I do riot mean to say, 
 that, come what will, we shall have base, venal, and corrupt 
 judges in Massachusetts, or that their sycophancy and subser- 
 viency will be palpable, glaring, monstrous ; but I do say, that 
 the lofty and eminent excellence which we have had in that 
 department will no longer be there ; and that we must here- 
 after be content to associate with our ideas of a judge, a less 
 conspicuous merit, and a less distinguished ability, than we 
 now rest upon for the protection of our persons, our property, 
 and our characters, in short, all that is worth protecting or 
 living for. 
 
 As a man thinketh in his heart, says the wise man, so is 
 he. This saying, applicable in so many ways, applies also 
 to the case of judges. At present, no man, however dissatis- 
 fied he may be with the decisions of the court, can say, or 
 have reason to think, that the judges have been moved by 
 any thing but their convictions ; but let them be in a position 
 to give color to the charge of being actuated by foreign influ- 
 ences, and especially political biases, and discontent will be 
 sure to vent itself in that w^ay. You know how many of the 
 cases that come before our courts have more or less of a po- 
 litical aspect, especially constitutional cases, and you also 
 know that many lawyers are vehement politicians ; but per- 
 haps you do not know what I can tell you, that there are 
 some lawyers who cannot conceive it to be consistent with 
 the scheme of Divine Providence in the government of this 
 world, that they should ever be mistaken. Therefore, when 
 the court decides against them, they feel as if chaos were 
 come again, that suns will cease to rise, and stars refuse to 
 shine. Now would you like to see such a state of things in 
 Massachusetts, as that a lawyer-politician might ventilate his 
 wrath, after an adverse decision, in words like these, muttered 
 in the bar, but not inaudible : " You think it a fine thing to 
 sit up there on the bench and make law to suit your own pol- 
 itics ; but your course will soon be run. Your ten years will 
 be out next year, and we will pitch you overboard with as 
 little ceremony as you pitch overboard a law that does not
 
 154 MASSACHUSETTS JURISPRUDENCE. 
 
 suit you, and put a man in your place who will have some 
 sympathy with the people, and respect their wishes a little 
 more than such an old fogie as you." 
 
 In England, the judges are independent of the crown ; 
 formerly they were not. The change was considered, and 
 justly so, as a great triumph of constitutional liberty. In the 
 course of the debates in the Convention, a speaker of the 
 Coalition party remarked, that it was right that the Judiciary 
 should be independent of the crown in England, so that it 
 might stand between the government and the people ; but 
 that here the people are the sovereign, and we do not want 
 any thing to come between them and the government. There 
 is great confusion of ideas in this statement, although it is 
 constantly advanced against an independent Judiciary. It is 
 not true, that in England the Judiciary stands between the 
 government and the people ; it stands between the government 
 and the individual. And just so here, the Judiciary stands 
 between the government and the individual, and it ought to 
 stand there ; but then the government here is the people ; and 
 we want a Judiciary strong enough to protect the individual 
 against the people, in case the people should be wrong. We 
 want a judge who will not fear a political party or a political 
 press. We insist that every criminal, however odious his 
 crime may have been, should have a fair and dispassionate 
 trial. We claim and need a Judiciary strong enough to pro- 
 tect a trembling culprit against popular violence and political 
 persecution. We insist, when the constitutionality of a law 
 is before the court, that no judge should feel that his chance 
 of reappointment may be affected by his decision. We claim 
 to have political offenders tried as impartially, with as much 
 freedom from executive influence, as John Marshall tried 
 Aaron Burr. Does any man say that John Marshall would 
 have tried Aaron Burr in the same way, had the tenure of the 
 judges of the Supreme Court been for ten years? I reply, 
 that, with such a provision in the Constitution of the United 
 States, you would never have had John Marshall, or any man 
 like him, on the bench. 
 
 The Judiciary of Massachusetts is one of the brightest jew- 
 els in her honored crown ; we do not perceive all its lustre,
 
 JURIES JUDGES OF THE LAW. 155 
 
 because it is worn upon our own brow. But go to Arkansas, 
 to Wisconsin, to Georgia, and ask there what is the authority 
 of the Massachusetts Reports, and you would be enlightened 
 on this subject. Your heart would swell with honorable 
 pride at the respect paid, in those distant States, to the decis- 
 ions of our Judges, whom the new Constitution insults by 
 virtually pronouncing them unfit to appoint their own clerks ! 
 Such influence as we exert, through our courts, is one of the 
 purest and highest that man can have over man. It has no 
 alloy of passion or prejudice ; it is the calm supremacy of 
 truth, reason, and conscience. Are we to renounce this ? 
 Are we to throw it away in pure wantonness ? I trow not. 
 The people have been taken by surprise upon this question of 
 the Judiciary. They will give their answer at the polls. 
 
 SILAS STANDFAST. 
 
 No. XII. 
 
 * 
 
 MY DEAR JOTHAM, We have now done with that por- 
 tentous omnibus, the First Proposition, an omnibus so huge, 
 that a passenger at one end cannot see a passenger at the 
 other, and therefore I can call your attention to the Third 
 Proposition, touching the right of juries in criminal cases, 
 which is as follows : 
 
 " In all trials for criminal offences, the jury, after having received 
 the instruction of the court, shall have the right, in their verdict of 
 guilty or not guilty, to determine the law and the facts of the case ; 
 but it shall be the duty of the court to superintend the course of the 
 trials, to decide upon the admission and rejection of evidence, and 
 upon all questions of law raised during the trials, and upon all collateral 
 and incidental proceedings ; and also to allow bills of exceptions. And 
 the court may grant a new trial in case of conviction." 
 
 In order to apprehend the full force and effect of this pro- 
 posed change, we must first ascertain what is the law, as it now
 
 156 JURIES JUDGES OF THE LAW. 
 
 stands. And on this point, it is fair to state that there is 
 some difference of opinion among lawyers and judges. This 
 arises parlly from the imperfection of language, and partly from 
 the fact, that in general a man's convictions and opinions fol- 
 low in the lead of his sympathies, passions, arid prejudices. 
 We believe what we wish to believe ; truth is what a man 
 troweth. Under our system of law, the rights and powers of 
 the jury in criminal cases are expressed in a well-known legal 
 proposition, that the jury are judges of the law as well as the 
 facts. But from these words one man will extract one mean- 
 ing, and another another. A man who thinks that there is 
 danger from the encroachments of the Judiciary, will put one 
 interpretation upon them; while another, more apprehensive 
 of popular passion, embodied in the jury-box, will put an- 
 other, and both will be justified to their own consciences. I 
 will explain these words to you, as I understand them ; and 
 as they have been recently expounded by the Supreme Court 
 of our State. 
 
 Every criminal issue involves questions of law as well as 
 questions of fact. For instance, an act of homicide is com- 
 mitted, that is, one man kills another. This may be murder, 
 or it may be manslaughter, or it may be justifiable or excusa- 
 ble homicide. In the first case, the punishment is death ; in 
 the second, it is imprisonment; in the third, the person is 
 acquitted. When a man is on trial for murder, and the de- 
 fence is that the act was no more than manslaughter, and 
 when the evidence has all been put in, the judge, in his 
 charge to the jury, does not say to them, in so many words, 
 that the prisoner is guilty of murder or manslaughter, because 
 that would be an interference with their peculiar and exclusive 
 province; but he explains to them the legal principles* by 
 which murder is distinguished from manslaughter, tells them 
 that such and such palliating circumstances discriminate the 
 one offence from the other, and, at the close, says to them, 
 that they must apply these rules of law to the facts in the 
 case, as they have heard them from the witnesses on the 
 stand, and find their verdict accordingly. 
 
 Thus, there are two elements put into the case : first, the 
 facts as proved by the witnesses ; second, the law as laid
 
 JURIES JUDGES OF THE LAW, 157 
 
 down by the court. With the former, the court have nothing 
 to do, they have no right to tell the jury that they must be- 
 lieve this witness and not that one, that this statement is 
 true and that is not true, because this would be an intrusion 
 upon the proper and exclusive province of the jury. But as 
 the jury, and the jury alone, are to weigh the facts, so the 
 court, and the court alone, are to expound the law. This is 
 their function and their duty. 
 
 But by the proposed change the jury are to have entire con- 
 trol over both the law and the facts. They have the right to 
 " determine the law," that is, to fix or settle the law. They 
 are to take the judge's charge, not as an authoritative exposition 
 of the law, but as a. piece of evidence respecting- the law, which 
 they may believe or not, just as they choose. He is no longer 
 to instruct the jury, but to advise them ; he is not so much a 
 judge as a presiding officer, a moderator of a judicial town- 
 meeting. 
 
 We judge of a tree by its fruits. What sort of fruits will 
 this tree bear ? The instant and obvious effect of the pro- 
 posed change will be, to destroy the certainty of the criminal 
 law. This law will be just what the twelve judges, sitting in 
 the jury-box, may determine it to be in each particular case. 
 There will be one law in Boston, and another in Worcester, 
 and another in Springfield; one to-day, another to-morrow, 
 and another next week. The government will be a govern- 
 ment of men, not of laws. At present, a client comes into 
 my office and tells me that he has been knocked down, or 
 that somebody has called him a thief, and he wants my advice 
 as to whether he shall resort to a civil action, or a criminal 
 prosecution, for redress. I can now advise him, with some 
 reasonable confidence, as to his rights in either event ; but let 
 this proposition be adopted, and I must say to him, " If you 
 bring a civil action, the result will be so and so ; but if you 
 have recourse to a criminal prosecution, I can give you no 
 opinion, but only a surmise or a guess. If the foreman of the 
 jury which tries the indictment should chance to be a political 
 or personal enemy of yours, they may bring in a verdict of 
 ' Served you right,' or ' Good enough for you.' You are a 
 Whig. That bench may be of opinion that there is no law 
 15
 
 158 JURIES JUDGES OF THE LAW. 
 
 in Massachusetts against a Democrat's knocking down a 
 Whig." 
 
 Let me go a little further, and imagine this professional 
 dialogue continued a few steps. Suppose my client to be a 
 man of a large spirit, inclosed in a small body, and say to 
 me, " Well, Squire, the next time a great strapping fellow, 
 that has not got a cent in the world, knocks me down, what 
 will be the consequence if I stick a bowie-knife into him, as I 
 mean to do ? " Now, to use a homely expression, the boot is 
 on the other leg, and I can say to my little game-cock of a 
 client, that perhaps the twelve judges who try that case may 
 be of the opinion that there is no law in Massachusetts against 
 sticking a bowie-knife into a man who has knocked another 
 down. 
 
 It is no sufficient reply to these considerations to say, that 
 practically such results are not likely to happen. It is always 
 right to argue against any law or rule from its possible conse- 
 quences. I do not want a fair-weather and smooth-water 
 law; but one that will hold when the wind is blowing great 
 guns, and the waves beating on the ship like so many trip- 
 hammers. 
 
 Upon what are called the rights of juries, there is a great 
 deal of declamatory nonsense put forth, founded upon analo- 
 gies so false and apprehensions so grotesque, that they can 
 only be explained by a want of common sense or common 
 honesty. In England, two hundred years ago, the bench was 
 disgraced by a set of judicial bloodhounds, who hunted the 
 martyrs of liberty to death, with as little regard to law as to 
 humanity, and a jury was merely an instrument to execute 
 the will of a cruel and wicked tyrant ; therefore, the rights of 
 the juries here, in America, in the nineteenth century, are 
 likely to be trampled under foot in the same way, and must 
 be protected against similar encroachment! Why, in Eng- 
 land even, such scenes will no more happen again, than will 
 Queen Victoria drive down to the Parliament House in her 
 state coach, and demand the bodies of Cobden and Bright to 
 be given up to her, for making radical speeches. And in our 
 country such things will occur, such apprehensions will be- 
 come real, when ice fails in Labrador, or talking in Con-
 
 ENGLAND AND AMERICA. 159 
 
 gress, when Everett grows prosy, and schoolboys protest 
 against holidays, when Irving's "Sketch Book" is not 
 read, and the Debates of the Convention are, when the 
 name of Washington ceases to be reverenced, and that of 
 Benedict Arnold begins to be, but not till then. 
 
 Again, these trials in England were state prosecutions, in 
 which the prisoner was charged with attempting to overthrow 
 the government. Would it not be a good joke to see a man 
 trying to overthrow the government here, which would be like 
 trying to turn over the great pyramid of Egypt, and set it up 
 on the apex ? Would it not be curious to see where or how 
 he would begin ? Our government is like a rocking stone, 
 one man can shake it, but a hundred thousand cannot over- 
 turn it. When was our last state prosecution in Massachu- 
 setts ? Who was ever hung for treason here ? Even old 
 Shays was allowed to die in his bed, and Dorr, in a neighbor- 
 ing State, aspired in vain to the palms of martyrdom. And 
 yet we hear small lawyers and small politicians constantly 
 drawing analogies between a criminal prosecution here, in 
 which society is protecting itself against attack, and a state 
 prosecution in England, in the days of the Stuarts, when the 
 government first condemned and then tried. A wretch breaks 
 into a lonely farmhouse at night, and cuts the throats of a 
 poor couple whom he finds asleep in their bed, and Windy 
 Gas, Esq., who defends him, talks about Sidney and Russell, 
 and addresses, on behalf of his odious and cowardly client, the 
 sacred sympathies which embalm those illustrious names. 
 
 When anybody talks to you, my dear Jotham, about the 
 danger of the judges encroaching upon the rights of the 
 juries, do you set him down for either a fool or a knave ; 
 probably the latter. There is about as much danger of it, as 
 there is of your house being burned, and your children scalped, 
 by the Indians. Our perils do not lie in that path. We do 
 not need to strengthen the jury or to weaken the bench. 
 Within our time, an Abolitionist has been shot in Ohio, and 
 a sheriff murdered in cold blood by Anti-renters in New York ; 
 and who has been punished for it ? In our own State, a con- 
 vent, occupied by defenceless women and children, has been 
 burned down by a mob, and who was punished for that ? one
 
 160 
 
 CONSTITUTIONAL QUESTIONS. 
 
 youth, by a short imprisonment. To widen the domain of 
 popular passion, to increase the impunity of popular violence, 
 is to fan a prairie-fire, and swell the freshets of spring. And 
 yet the course of democracy has ever been to give force to 
 the element of popular passion, embodied in the jury, and to 
 weaken the element of reason and justice, represented by the 
 bench. A radical politician hates a judge as instinctively as 
 a crow hates a gun. A radical heaven is a place where every 
 man does what he pleases, and there is a general division of 
 property every Saturday night. Courts and judges interfere 
 with this desired consummation, and therefore radicals feel 
 towards them much as wolves do towards shepherds' dogs. 
 
 The rights and duties of the jury, with us, are affected by 
 the peculiar relations between the Constitution and the laws 
 made under it. In all popular governments, where the major- 
 ity rule, a written constitution becomes necessary ; because, 
 otherwise, there would be no protection for the minority. 
 Thus arises an important the most important branch of 
 law, constitutional law. Lawyers are constantly raising, 
 judges are constantly deciding, the question whether a cer- 
 tain statute is or is not repugnant to some clause in the Con- 
 stitution, the paramount, organic law. In England, they 
 know nothing of this class of questions. Parliament there is 
 supreme, and, as is pointedly and popularly said, can do any 
 thing except change a man into a woman. In regard to these 
 constitutional questions, so close is the connection between 
 the will and the mind, that, where there is any room for doubt, 
 ninety-nine men out of a hundred really and conscientiously 
 will believe a law to be unconstitutional which they dislike ; 
 and the reverse. You remember the Charles River Bridge 
 case, many years ago ; and the constitutional questions that 
 grew out of it. Do you suppose there was a man in Charles- 
 town, whose real estate was benefited by the new bridge, 
 who believed that the act creating it was unconstitutional ? I 
 have heard of moral idiots ; such a man would be a moral 
 genius of the highest order. I have read of a Pope who tried 
 himself for heresy, and, at the end of the hearing, adjudged 
 himself to be burned ; but if there ever was such a man, the 
 breed has long been extinct. It is the same thing at this
 
 LOSS OF SECURITY. 161 
 
 moment with the Maine Liquor Law, so called ; all who dis- 
 like the law really believe it to be unconstitutional. 
 
 Now, under the proposed amendment, the jury have the 
 right to acquit any one who may be tried under a law which 
 they may deem unconstitutional. What will be the practical 
 effect of this? A law is passed by a large majority; it is 
 sustained by public sentiment; the court charges that it is 
 constitutional; and yet, if one juryman think otherwise, no 
 conviction can ever be had under it. Is not this an anti- 
 democratic principle? Does it not give to one man in twelve, 
 or one twelfth of the community, the power of nullifying the 
 decision of the majority, lawfully expressed ? 
 
 In the discussions upon this subject, it seems to be assumed 
 that the court will always, and as a matter of course, be 
 more inclined to convict than the jury. But this is by no 
 means the case. It often has happened, it often will hap- 
 pen, that a prisoner at the bar has been tried and con- 
 demned by public sentiment before the indictment has been 
 read to the jury. In such cases it is the duty of the court to 
 protect him against a headlong popular prejudice and to say 
 to the jury, in words of authority, that, whatever your pas- 
 sions or feelings may say, the law says so and so ; and by the 
 law alone this man must stand or fall. Is it not a noble thing 
 to see a judge thus instructing a jury ? Is it not a noble 
 thing to see a jury obeying such instructions? There is not 
 a prouder day in the whole life of Boston, than that on which 
 a jury of her citizens acquitted the soldiers who had fired 
 upon the people, on the seventh of March, 1770. John 
 Adams, in closing that case for the prisoners, said to the jury : 
 " To your candor and justice I submit the prisoners and their 
 cause. The law, in all vicissitudes of government, fluctua- 
 tions of the passions, or flights of enthusiasm, will preserve 
 a steady, undeviating course ; it will not bend to the uncer- 
 tain wishes, imaginations, and wanton tempers of men." 
 
 This appeal was heeded. The jury took counsel of their 
 "candor" and "justice," and not of their passions. Would 
 they have done so, if they had had the right to "determine" the 
 law ? I am aware that the judge may grant a new trial in 
 case of conviction. But will your decennial judge have the 
 15*
 
 162 HOUSE OF REPRESENTATIVES. 
 
 courage to brave public opinion, and save a man whom the 
 people have determined to slay ? 
 
 It may be said, that the proposed change will have no great 
 practical effect, because now the jury may return a general 
 verdict, and cannot be interrogated as to the grounds of their 
 determination ; and thus they have now the power of disre- 
 garding the instructions of the court, and of determining the 
 law for themselves. To this I reply, that the change converts 
 a usurped power into a lawful right, and we thus lose the 
 security which we now have in the conscience of the jury. 
 There are some men yet left in the world, who are afraid to 
 do wrong. Give them the right to determine the law, and 
 the last barrier between popular madness and an innocent 
 man's blood will be broken down. 
 
 SILAS STANDFAST. 
 
 No. XIII. 
 
 MY DEAR JOTHAM, I now come to speak of the system 
 of representation in the popular branch of the General Court, 
 which the Convention have offered to the voters of Massachu- 
 setts ; a subject which I must discuss in a single letter, though 
 all the injustice and absurdity of the proposed scheme could 
 not be exposed, or held up to shame, as it ought to be, in less 
 than a dozen. I shall therefore not go into any elaborate 
 statistical details, or make any minute comparisons between 
 one part of the State and another. There is, in fact, no longer 
 any need of this. The broad and palpable enormities of the 
 system are enough for my purpose, and are widely enough 
 known. They are as easily seen as a church by day-light. 
 When we hear that a noble-hearted friend of liberty is lan- 
 guishing in prison, our indignation and sympathy do not wait 
 to learn the precise weight of his chains or the number of 
 their links. The simple fact is enough. It is not the exact 
 degree of injustice and oppression that stirs the blood ; we
 
 HOUSE OF REPRESENTATIVES. 163 
 
 feel before we calculate; the sense of wrong is roused be- 
 fore the sum total of the wrong is known. 
 
 A great deal of ink and breath has been expended, during 
 the last three or four years, to convince the people of Massa- 
 chusetts that they had a Constitution so sadly out of repair, 
 that nothing short of a Convention was able to mend it. If 
 the quacks of Democracy are to be believed, we have been 
 languishing under such a complication of disorders, that noth- 
 ing but an extraordinary degree of native vigor has kept us 
 alive. And what was our most alarming disease ? What 
 was it that required the speediest and sharpest remedy? 
 Why, the representative system, beyond all question, doubt, or 
 controversy. And what were the most marked symptoms of 
 this state of desperate sickness ? First, that the House of 
 Representatives was far too large for the convenient despatch 
 of business ; second, that the representation of the people 
 therein was not founded upon the true democratic principle 
 of equality. 
 
 Upon both of these points, as they declared, there was a 
 general consent among judicious and unprejudiced minds. 
 The House of Representatives, as at present constituted, is 
 too large a body for the convenient despatch of business. A 
 traveller in Russia, observing the universal use of the hatchet 
 among the peasantry, remarked that, if they were taught to 
 write, they would rnend their pens with it. To summon a Leg- 
 islature of from three hundred and fifty to four hundred, to make 
 laws for less than a million, seems to me like using a hatchet 
 to mend a pen. Business drags its slow length along, like a 
 wounded boa-constrictor; it moves to the tune of the Dead 
 March in Saul. The sessions are protracted to an absurd 
 length ; and a double expense is thus incurred, both from the 
 number of legislators to be paid, and from the length of time 
 they are about their work. 
 
 The House of Representatives, at present, is not founded 
 upon that principle of equality which we all recognize as the 
 basis of democratic institutions. The small towns have 
 more than their fair share of representation ; the cities and 
 large towns have less. Political power is not distributed ac- 
 cording to population, and a voter's weight and influence in 
 the State depend upon the accident of his locality.
 
 164 INEQUALITY. 
 
 Well, the Convention was called, more for the sake of rem- 
 edying this double evil than for all other reasons put together; 
 at any rate, such was the pretext. It was on this ground, 
 mainly, that the question was presented to the people. No 
 politician could have had the face to talk about a Constitu- 
 tional Convention, if the system of representation had been 
 unobjectionable. The people would have laughed him to 
 scorn, as one who wanted to help the Dutch take Holland. 
 That was a grievance. It was a drum that they could beat; 
 and they did beat it to some purpose. By it and through it 
 they got their Convention,. And then what did they do ? 
 Why, they laid their heads together, and talked, and ciphered, 
 and made tables, and at the end of three months came out 
 with a scheme vastly worse than the present system in all re- 
 spects ; a scheme which gives us a larger House, and makes 
 the inequality of representation more glaring. The average 
 number of the House, as at present constituted, is three hun- 
 dred and seventy-two ; under the proposed change, it will be 
 four hundred and Jive. And as to inequality, there is one de- 
 cisive fact ; and that is, that, in a House of four hundred and 
 five, a number of voters less than one third by fifteen hundred, 
 will and must elect two hundred and eight members, or over one 
 half the House ! The present system is sufficiently unequal, 
 but clearly not so bad as that. 
 
 This is certainly a notable result Here were a body of men 
 called together to take off a burden, and they lay on a heavier 
 one. A convocation of doctors is summoned to cure a patient 
 of a slight touch of the rheumatism, and they leave him roar- 
 ing with the gout. The cool assurance of the Coalition poli- 
 ticians, in claiming merit at the hands of the people for lashing 
 them with scorpions, when before they were, at worst, gently 
 beaten with birch rods, is only to be paralleled in that cele- 
 brated scene in Swift's " Tale of a Tub," where Lord Peter 
 bullies his brothers Martin and Jack into believing, or into 
 saying that they believe, that a brown loaf is a shoulder of 
 mutton. 
 
 And on what grounds, by what arguments, is so unjust, so 
 anti-democratic, so shameful a system of representation de- 
 fended? Mainly on the ground of prescription. Massachu-
 
 ARGUMENT FROM PRESCRIPTION. 165 
 
 setts has had from the beginning a representation of corpora- 
 tions ; her towns, as such, have been entitled to choose repre- 
 sentatives, and therefore a plan which has come down to us 
 from our fathers, and is hallowed by the associations and tra- 
 ditions of two hundred years, should not be abandoned, even 
 to take up a system which we might prefer if we were going 
 to begin anew. 
 
 Considerations of this kind, urged by Democratic politi- 
 cians, have to me a savor of suspicion. The voice is the 
 voice of Jacob, but the hands are the hands of Esau. I spy 
 the " pig peard " of radicalism under this conservative muffler. 
 I remember that these men, who trot out " the wisdom-of-our- 
 ancestors" argument in defence of a system which time has 
 made unequal, unjust, and mischievous, change their hand 
 when the same defence is invoked for a sacred and time-hon- 
 ored principle, such as the independency of the Judiciary. 
 Then, we hear of " obsolete abuses," of " retrospective preju- 
 dice," of " dark ages " and "feudal oppressions," of " Old Hun- 
 kers," " Old Fogies," and " the fossil remains of an antedilu- 
 vian age of politics." Then, Massachusetts is a hopeless lag- 
 gard in the race of improvement, and insists upon riding 
 through the world with her head turned towards the horse's 
 tail. Then we are asked when we last left our cards at 
 the door of the Ark, and how the country looks around Mt. 
 Ararat. 
 
 Now, few men feel more strongly than I do the argument 
 from prescription. But the constitution of a House of Rep- 
 resentatives is just one of those things we are bound to learn 
 from experience, and to make changes in order to meet the 
 changes and requisitions made by time itself. This whole 
 battle was fought in England twenty years ago, in the debates 
 on the Reform Bill. There and then this argument was 
 pressed in favor of the old rotten boroughs, that had ceased to 
 have voters, and manufactured nothing but members of Par- 
 liament. On the other hand, the liberal statesmen con- 
 tended, that the population had changed its localities, under 
 the demands of commerce and manufactures, that populous 
 places had become solitudes, and solitudes populous places, 
 and that the House of Commons must be modified accord-
 
 166 CITIES AND TOWNS. 
 
 ingly, in short, that representatives must be taken from the 
 past and given to the present. These considerations pre- 
 vailed, and the House of Commons was reformed ; and it 
 was a wise and salutary reform, carried against the Tories, 
 who made use of precisely the same arguments that Bout- 
 well and Hallett are now addressing, not to the sense, but to 
 the nonsense, of the people of Massachusetts. And shall we 
 be less wise, less progressive, than England ? Shall we flaunt 
 in her cast-off rags ? 
 
 Again, it is said that the towns and rural districts must be 
 protected against the cities. This argument would be merely 
 foolLsh, but that it happens also to be wicked. I use the word 
 advisedly. I call that man wicked who sows the seeds of 
 strife between one part of a community and another. If 
 you caught a man in your house setting your children at va- 
 riance with each other, or poisoning their minds with distrust 
 of their parents, you would kick him out of the back door, 
 and put on your thickest pair of cow-hide boots in order to 
 perform the ceremony effectually ; and you would serve him 
 right. In like manner my wrath is stirred when I see a shal- 
 low and unprincipled demagogue blowing, with venal and 
 impure breath, the coals of strife between city and country, 
 and hardening the hearts of brethren against each other. 
 And the notion on which this argument rests is as false as 
 the motives which prompt it are base. It is slandering the 
 title to an estate, in order to buy it at less than its value. 
 There is no difference in interests, there is no alienation of 
 feeling, between the city and the country. We are all in the 
 same boat, and not a very large boat either. This calumny 
 was never heard of till within the last few years. It was 
 made to order. That viper has crawled out of the Coalition 
 heart, and the people of Massachusetts will crush the reptile's 
 head with their heel ! 
 
 But why are the "rural districts" to be protected against 
 the cities, and what is there in the latter which makes them 
 so dangerous ? Sometimes we are told that it is the great 
 wealth of the cities that makes them formidable, and some- 
 times, their great poverty. Sometimes it is said that talent 
 of all kinds is drawn to the cities, and that this is a formid-
 
 CLAIMS OF JUSTICE. 167 
 
 able element ; and, again, that huge masses of ignorance are 
 aggregated in cities, and that peril resides in them. Thus, 
 whether a man be rich or poor, wise or foolish, so long as he 
 lives in a city, he is dangerous, and must therefore be disfran- 
 chised. To state these arguments is to refute them ; they 
 contradict and neutralize each other. Certai-nly, within the 
 last twenty years, especially since the application of steam to 
 locomotion, the cities and large towns have increased more, 
 in proportion, than the " rural districts " ; but what then ? 
 Nobody is compelled to leave the village and come to the city. 
 And why is it that so many persons thus change their place 
 of residence ? Because they think that they can get a living 
 more easily in the cities and large towns than in the villages, 
 and the necessity of getting a living is the controlling motive 
 in the lives of nine men out of ten. And, as a general rule, 
 the reason why more men can get a living in one place than 
 another, is from some superior natural advantages which that 
 place enjoys. And shall a place be made, through the laws of 
 man, to suffer for benefits conferred upon it by the laws of God ? 
 But I will not pursue this subject, though I have hardly 
 crossed its threshold. The true rule in regard to the repre- 
 sentative system, -in a growing and progressive community 
 like ours, is that laid down by Governor Boutwell, in a speech 
 in the Convention, " the application of the results of experi- 
 ence to the existing institutions of the country " ; respect 
 being had to the traditionary feelings and transmitted instincts 
 of the people, so far as is consistent with the claims of jus- 
 tice and the inevitable changes of time. I am well aware of 
 the clause in the proposed Constitution, by which the Legis- 
 lature of 1856 is required to district the State for the choice 
 of representatives. But, though the Constitution uses the 
 emphatic word " shall" I do not know why the Legislature 
 may not use the equally emphatic word " wont" and then 
 what are we going to do about it ? Besides, a Senate and a 
 House of Representatives, chosen as those bodies must be in 
 that year, if this party Constitution prevails, will never agree 
 upon the details of a district, and thus the plan will fall 
 through, as it is intended by the wire-pullers behind the scenes 
 that it should. 
 
 SILAS STANDFAST.
 
 168 WHAT CHANGES ARE WANTED. 
 
 No. XIV. 
 
 MY DEAR JOTHAM, Many of the "thrilling," "impas- 
 sioned," and " electrifying " speakers, whose names bestar the 
 columns of the " Commonwealth," like so many fire-flies on a 
 June night, would fain persuade the people that the Whigs, 
 after all, are in favor of most of the changes proposed by the 
 Coalitionists in their party Constitution. But this is not so ; 
 and they either know it already, or they must soon find it out. 
 Irish echoes are said to anticipate the sound ; Coalition knowl- 
 edge often anticipates the fact. The " Commonwealth" knew 
 that Dr. Palfrey did not write his own pamphlet, and that Mr. 
 Charles Francis Adams was not opposed to the Constitution. 
 As there is a knowledge that is power, so there is an igno- 
 rance that is bliss. 
 
 We should all be glad to have the Constitution amended 
 where it needs it. We should be glad, for instance, to have 
 the House of Representatives so diminished in number as to 
 make it an effective working body in these postdiluvian pe- 
 riods, when the years of man are only threescore and ten. 
 We should be glad to have the plurality system applied to the 
 election of Governor and other State officers, so that we may 
 choose men to govern us without having them corrupted and 
 the State dishonored by base barters for office. And we should 
 be glad to have other salutary changes adopted, now, or as 
 time and circumstances may develop the need of them. But 
 the proposed Constitution has done none of these. As Gov- 
 ernor Morton says, in his recent speech at Taunton, it has 
 done what it ought not to have done, and has left undone 
 what it ought to have done. Its omissions and commissions 
 are alike glaring. This Constitution, with its clumsy blun- 
 ders, its shameful injustice, its low, dishonest, partisan charac- 
 ter, we reject and disavow, as an unworthy thing, disgraceful 
 to those who conspired together to make it, mischievous to the 
 great interests of the State, and tending to break down moral 
 principle and social order among us. 
 
 The proof of all this, my dear Jotham, I have already given
 
 WHAT CHANGES ARE BAD. 169 
 
 you, sometimes in detail and sometimes not, but always, 
 I think, plainly enough. I have shown you, for instance, that 
 the shabby attempt to shorten the sessions of the Legislature 
 by an unstatesmanlike' provision, that has been already tram- 
 pled upon in New York, will only end, if adopted, in making 
 two sessions for one, multiplying long speeches, and putting 
 more money into the pockets of the representatives, just as it 
 has in that State. I have shown you that it is not decent or 
 honest to lump nine tenths of the Constitution into one mass, 
 and endeavor to corner us up, and drive us to take a great deal 
 that we condemn, in order to get a little that we like, and so 
 help the Coalition to carry out the unprincipled bargains they 
 made in the Convention by their wholesale log-rolling. I have 
 shown you how mean it is to demand a poll-tax and open 
 voting in TOWN affairs, in order that the dollars of the farmers 
 may not be touched by any hands they do not see and know 
 all about; while every thing relating to National and State 
 affairs is given up to the secret ballots of those who bear no 
 penny of the public burdens. I have shown you, that, in the 
 hurry and eagerness of the Coalition to carry their party meas- 
 ures, they forgot to order any authentic or legal record made of 
 the very Constitution they ask you to accept, so that you can- 
 not now verify what it contains, in the only way it is permitted 
 to verify the commonest judgment of a court of justice, or the 
 most unimportant resolve of the Legislature. 
 
 Some things I have not touched upon, for want of time. I 
 have not exposed all the clumsy blunders of the proposed 
 Constitution, which gives, for instance, in one article, power 
 to the Governor and Council to determine who are elected, 
 and who " shall be " Senators, while, in another, it reserves the 
 same power to the Senate itself; and, when it comes to Har- 
 vard College, restores the obsolete, rejected, sectarian Board of 
 Overseers, which would thus be made to consist mainly of 
 sixty or seventy Congregational ministers in Boston and the 
 five neighboring towns, all just because the Convention did 
 not know any better how to do its work. 
 
 But a truce to these details, though they should all be noted 
 and considered by the people, and let me say a word about 
 two or three of its preponderating provisions, which you will 
 16
 
 170 
 
 WHAT CHANGES ARE BAD. 
 
 talk over with your neighbors when you come to make up 
 your decision on the whole subject set before you by the Con- 
 vention, a decision, which, in its results and consequences, 
 will affect the welfare of your children and your children's 
 children, long after you and I are in our graves. 
 
 And, First, The " Proposed Constitution " should be re- 
 jected, because it would give up the great principle that we 
 fought for in the Revolution, that taxation and representation 
 should go together ; and because, for the purposes of the party 
 coalition, and for no other purposes, it would put the power 
 of the government permanently into the hands of a minority 
 consisting of less than one third of the people, who would not 
 only be enabled to choose more than half the representatives 
 every year, but who must do it, an outrage on every idea 
 connected with the republican doctrine, that the will of the 
 majority shall govern the minority. 
 
 Second, The proposed Constitution should be rejected, 
 because it would impair or destroy the independence of the 
 Judiciary, and degrade an authority, indispensable to the wel- 
 fare of the community, by putting on the bench inferior men, 
 in place of the high and faithful judges who have so long ad- 
 ministered justice to us and to our fathers, with wisdom, 
 integrity, and mercy, and who have given the jurisprudence of 
 Massachusetts a name for learning and uprightness in every 
 State in the Union. 
 
 Third, The proposed Constitution should be rejected, 
 because it would not only treat the justices of the Supreme 
 Court with an indignity as unworthy of us as of them, in tak- 
 ing from them all control over their own clerks, but also 
 break down the independence and efficiency of the executive 
 power, by making the clerks of the courts and the sheriffs so 
 dependent on a political party for their places, that the ques- 
 tion whether a popular leader shall be punished for a crime of 
 which he has been convicted, will depend upon the question, 
 whether the clerk and sheriff will give effect to the judgment 
 of the court, when, on the one hand, both clerk and sheriff are 
 sure that they shall, at the very next election, be dismissed 
 from office if they do it; while, on the other hand, even in 
 case the Governor should dare to turn them out for their re-
 
 THE WHOLE TO BE REJECTED. 171 
 
 fusal, they can trust to their party to reinstate them by a 
 popular vote, in contempt of the Governor and his authority. 
 
 And, Fourth, and last, We should reject the proposed Con- 
 stitution, because, ty a cunning and corrupt party arrangement, 
 made to secure a Coalition supremacy in the Commonwealth, 
 and for nothing else, a fair majority of the people can never 
 hereafter get rid of any of its unjust and mischievous pro- 
 visions, since it declares that less than one third of the voters 
 shall, in all future time, have control of the other two thirds, 
 in the choice of members for any convention that may be held 
 to amend the Constitution ; an insult to justice and honesty, 
 which, if it should be engrafted into our Supreme Law by the 
 jugglings of party leaders, will lay the foundation of a series 
 of feuds, quarrels, and agitations, which will never permit the 
 people of this Commonwealth to have an interval of peace, 
 until, in some way or other, the disfranchised and outraged 
 majority are restored to the rights, on which their welfare, and 
 that of their children, depends. 
 
 Now, then, my dear Jotham, since, as I have shown you, 
 the great Representative power of the government is, by this 
 proposed party Constitution, given, in the most unjust and 
 unjustifiable manner, to a small minority of the people ; since 
 the Judiciary, the bulwark of our personal rights and personal 
 safety, is broken through by it ; since the Executive, to which 
 we look for immediate protection against violence and wrong, 
 is weakened and overawed by it ; and since no remedy is left 
 by it, in the hands of a majority even of two thirds of the voters 
 of the Commonwealth, for all or any of these monstrous evils, 
 and for this overthrow of principle and law ; since, I say, I 
 have shown you all these, you know the reasons why WE GO 
 
 AGAINST THIS PROPOSED PARTISAN CONSTITUTION | and my 
 
 word for it, my dear Jotham, you and the two thirds of the 
 people whom it seeks to defraud of their rights, will, when the 
 question is put to them, be of the same mind. 
 
 Indeed, the very leaders of the Coalition, and of the two 
 parties that have formed it, already desert the obnoxious and 
 shameful cause, and come over to us. Marcus Morton, once 
 a Democratic Governor of Massachusetts ; John G. Palfrey, 
 lately the Free Soil candidate for the same office ; the venera-
 
 172 
 
 THE WHOLE TO BE REJECTED. 
 
 ble Samuel Hoar, always superior to the love of place ; 
 Charles F. Adams, more faithful to the honored name he bears 
 than to his recent political associations, and others of mark 
 among them, are already on the outer walls of the old Con- 
 stitution, beckoning the people to the defence of their rights. 
 All honor to them for it! And all honor they will have, when 
 the 14th of November is come and gone. For this is not a 
 party question ; and party passions however they may be 
 stirred up by reckless partisan leaders and venal stump speak- 
 ers will not decide it. It will be decided by a careful and 
 conscientious exercise of that sound sense which, in the mass 
 of the people of Massachusetts, cannot be long hoodwinked, 
 and which has never yet been cornered, or outwitted, or driven, 
 as it is now attempted to corner, and outwit, and drive it, 
 by what Mr. Palfrey well calls " a stupendous piece of log- 
 rolling." Mark my words, Jotham, the fate of this " ring- 
 straked and speckled " Constitution, the product of fraud, 
 trick, and party corruption, is settled in the minds of the peo- 
 ple already. Massachusetts will follow the manly examples 
 of New Hampshire, Delaware, Connecticut, and Rhode Isl- 
 and ; and that your honest' vote will contribute to this desired 
 consummation, I am sure. 
 
 SILAS STANDFAST.
 
 TO THE 
 
 CITIZENS OF FITCHBURG, 
 
 DELIVERED, AT THEIR INVITATION, 
 
 BY 
 
 HON. SAMUEL HOAR. 
 
 FKOM THE BOSTON JOURNAL, NOVEMBER 1, 1853. 
 
 16
 
 ADDRESS OF Mft. HOAB. 
 
 MR. HOAR said he had been invited to address this audience 
 upon the subject of the proposed amendments to the Consti- 
 tution, and he had consented with great reluctance to do so. 
 He felt this reluctance, not on account of any unwillingness 
 to make known to his fellow-citizens the views which he had 
 been able to form on this subject. It was his belief, that it 
 is the duty of every man to make known to his fellows, when- 
 ever and wherever he has the opportunity, his views upon 
 questions of public interest, to the end that he may correct 
 whatever is amiss in his own views, and aid his neighbors in 
 coming to correct conclusions ; and in this way he will render 
 a service valuable to himself and to them. He hoped to pre- 
 sent his views in a candid manner, and proposed to submit 
 them to the criticism and judgment of his hearers. If these 
 views appeared to his hearers to be right, he hoped they would 
 follow them ; if they did not so appear, reject them. Heaven 
 forbid that he should ask any one to pursue any other course 
 than this. 
 
 What are the principles, he asked, which should guide us 
 in forming our opinions and giving our votes in the approach- 
 ing election ? Ought we to be governed by our political party 
 prejudices? Is there any considerate, fair-minded man, of 
 sober judgment, who will not at once answer this in the neg- 
 ative ? We have all had, in the course of our lives, strong 
 political party attachments. Ought they to operate in a case 
 like this ? If they do, we shall suffer, certainly, inevitably. It 
 becomes us to give our political party prejudices to the winds,
 
 176 TWO BAD PROVISIONS. 
 
 and to look at the instrument which is presented to us, and at 
 that alone, without any consideration of who it was that pre- 
 pared that instrument. 
 
 Mr. Hoar said he should be obliged to state old-fashioned 
 principles. He should not dare to present to an audience, for 
 whose judgment he should have any respect, principles which 
 are not well understood and acted on by the citizens of Mas- 
 sachusetts heretofore. Let us then look at the propositions 
 offered to us, and see if they accord with the principles of 
 equality, of justice, of natural right. If they conform to this 
 test, let us adopt them without further inquiry, for they will 
 be for the benefit of the whole people. If they conflict with 
 it, let us reject them, for if we do not we shall suffer. 
 
 Before proceeding to examine some of the more prominent 
 provisions of the new plan, Mr. Hoar said he would speak of 
 several which to him seemed right and just, and which in their 
 tendency would have a salutary effect upon the whole people. 
 The first of these was the provision for single Senatorial Dis- 
 tricts. This ought to be adopted, for reasons obvious to all. 
 There is justice and equality in it, and it accords with the 
 principle embraced in the present Constitution, of securing 
 equality to all. Second, the increase of the School Fund, and 
 the prohibition of its ever being devoted to any sectarian or 
 denominational purposes. These, he could not doubt, would 
 receive the approbation of his fellow-citizens. He also thought 
 there should be some provision made by which a citizen hav- 
 ing a claim against the State could have an impartial and 
 fair hearing in his case, and have justice secured to him. 
 There were some other features in which the principles were 
 right in themselves, but the modifications of which were 
 wrong ; but he had not time to stop to examine them, and 
 would pass to matters of more importance. 
 
 He would then ask the attention of the audience to two 
 branches of the proposed plan, to which he could not give his 
 assent, and to the reasons why he could not support them. 
 The first of these branches was in regard to the House of 
 Representatives. That plan is very well understood to be 
 this : it gives to every town, however small, a representative 
 six years in ten ; it gives to every town having 1,000 inhab-
 
 INEQUALITY OF REPRESENTATION. 177 
 
 itants, one representative every year ; to every town having 
 4,000 inhabitants, two representatives every year; to every town 
 having 8,000, three representatives every year ; and so on up- 
 wards, making 4,000 the mean increasing number for a single 
 representative. The present Constitution gives to every town 
 a representative as often in the course of ten years, as the 
 number 160 is contained in the number of its inhabitants, 
 and the right also of a representative in the valuation year. 
 Every town having 1,200 inhabitants, instead of 1,000, has the 
 right to a representative every year, and 2,400 instead of 4,000 
 is made the mean increasing number. The change is obvious 
 to all. 
 
 There is, for some reason, an existing inequality between 
 the representatives from the small and large towns. A 
 town with 1,200 inhabitants may send a representative, but 
 a second cannot be sent without double that number. In 
 the small towns, a very considerable power is given to the 
 voter above the large towns. The Convention of 1780 af- 
 firmed the doctrine that the natural right of all is equal ; the 
 Convention of 1820 reaffirmed it, and even this last Conven- 
 tion also reaffirmed it, and it should not be departed from 
 without good and sufficient reason. It is not a sentiment of 
 antiquity, but is embraced in our present Bill of Rights, in 
 such expressions as, "All men are born free and equal"; "The 
 people have the right to invest the Legislature with authority " ; 
 " All power resides in the people"; "There shall be, in 
 the Legislature of this Commonwealth, a representation of 
 the people, annually elected, and founded upon the principles 
 of equality." These last words are in the proposed plan as 
 clearly as in the others of 1780 and 1820 ; and in order to pro- 
 vide " for a representation of the people on the principle of 
 equality," it goes on to make a provision which gives a rep- 
 resentative to the small towns with not more than 50, and, in 
 some cases, not more than 20 voters, six years out of ten, 
 and makes the mean increasing number 4,000, instead of 2,400, 
 for the large towns ; and yet, in the small towns, makes the 
 number requisite to secure a representative 1,000, instead of 
 1,200. Are these provisions in accordance with the principles 
 of equality which I have read ? Do they carry out those
 
 178 INEQUALITY OF REPRESENTATION. 
 
 principles, or do they violate them ? If the former, adopt 
 them ; if the latter, reject them. 
 
 The results of these changes must be great. But these are 
 not the worst features of this plan. Let us look further, and 
 see how they compare with the principles of equality or nat- 
 ural right. He did not propose to enter into a minute com- 
 parison of the effect of this new plan in the case of particular 
 small towns, where it gives to a voter in one town, two, three, 
 five, six, and in some cases ten times the power of a voter in 
 another town. It would occupy more time than he had. He 
 would look at some more general results. It had been calcu- 
 lated that the proposed plan would give the control of the 
 State, so far as the House of Representatives is concerned, to 
 one third of the inhabitants of the State, that is to say, 
 that one third shall govern the other two thirds. Some say 
 this is not quite true ; but if it approximates to that, he would 
 ask if it is in accordance with the principles of equality. 
 The people govern, not the corporations. Some calculations 
 have been made on a larger scale. Franklin County is al- 
 lowed, by this plan, one representative for every 1,450 inhab- 
 itants ; Bristol County, one for every 2,870 inhabitants. Sup- 
 pose I stop here, and have not another statement to make, is 
 this according to the principle of equality ? What is the 
 difference between these two counties. There are not found 
 here the Irishmen who are found in Boston or Fitchburg, and 
 who are given as the reason for these inequalities. What has 
 Bristol done that her men have not the right to vote, and that 
 her votes are not as good as the men of Franklin ? Do you 
 suppose the people of Bristol will be satisfied with this sys- 
 tem, if it is fastened upon them? Are we doing them justice 
 in voting for it ? And is it not your wish to do justice in the 
 matter ? 
 
 Again, Nantucket will have a representative for every 2,026 
 inhabitants. Suffolk one for every 3,877. I will now corne 
 to a still more general statement. The five counties west of 
 Middlesex Worcester, Hampden, Hampshire, Franklin, and 
 Berkshire have a representative for 1,884 inhabitants, and the 
 rest of the State one for 2,731. Is this equal ? There must 
 be a new meaning affixed to the word if this be equality, nat-
 
 JUDICIARY. 179 
 
 ural right, or justice. Can we expect that the different sections 
 of this Commonwealth will rest satisfied with such provisions 
 in regard to its representation ? Can you expect that any part 
 of the State, which may get more than its equal right, will on 
 the whole gain any benefit by such a violation of the princi- 
 ple of equality ? No. Men do not enjoy that which they 
 get wrongfully, and the same applies to communities. They 
 as individuals will receive the penalty of any violation of the 
 great principles of justice or of right. I repeat the question : 
 Is this fair, or honest, or right ? Does this proposed plan tend 
 to diminish or increase the present inequalities ? If the state- 
 ments which have been made approach correctness, the de- 
 cision must be against it. 
 
 The friends of this plan say, " We go in favor of town rep- 
 resentation." Is it the corporations which frame our laws, 
 or the people ? the corporations, or the mind, the intelligence 
 of the Commonwealth, as embodied in the laws of the State, 
 which is to govern ? He had seen, in the remarks of some 
 persons who wished to sustain this great injustice, the argu- 
 ment, that we must preserve the town institution, that this 
 institution had been of great benefit. All these arguments 
 assumed that these town institutions will be lost, unless we 
 give to a man in one town two, three, five, or ten times the 
 power we give to a man in another larger town. He could 
 see no reason in this. If it be right that the five counties 
 west of Middlesex should have a representative for every 1,884 
 inhabitants, and that the rest of the State should have its 
 power diminished one quarter, a good reason should be given 
 for it. 
 
 Mr. Hoar next alluded to the proposed changes in the 
 Judiciary, which in importance he considered exceeded even 
 the inequality in the system of representatiou. On this point 
 he would not trust his own views alone ; but finding them 
 supported by the Conventions of 1780 and 1820, and ac- 
 knowledged by the recent Convention, he felt that he had 
 some foundation for presenting them. The existing Consti- 
 tution declares, that " it is the right of every citizen to be 
 tried by judges as free, impartial, and independent as the lot 
 of humanity will admit " ; and it further says, " It is, therefore,
 
 180 TENURE OF JUDGES. 
 
 not only the best policy, but for the security of the rights 
 of the people and of every citizen, that the Judges of the 
 Supreme Judicial Court should hold their offices as long as 
 they behave themselves well." Thus speaks the existing Con- 
 stitution. The proposed plan embraces the same words in 
 part, but says it is the best policy, &c. that the Judges " shall 
 hold their offices by tenures established by the Constitution" 
 not " while they behave themselves well." Here is a change 
 proposed which is fundamental, and it means a good deal. 
 Will it not have the effect to make the opinion of the judge 
 depend upon the opinion of those who have the power at the 
 expiration of his tenure of office, which is fixed at ten years, 
 to turn him out ? 
 
 A man fit to be a judge should be a man of high character, 
 of integrity unspotted, of profound learning in the law, a 
 man of some experience in the law. Supposing a judge have 
 not these qualities, what would be the consequence ? Every 
 man who in court has seen a comparatively weak man on the 
 bench (a sight seldom seen on the Supreme Bench in Massa- 
 chusetts) and on one side an able advocate, and on the 
 other a comparatively weak one knows his feelings, as he 
 has seen the law wrested from the hands of the judge, and, in 
 point of fact, the advocate, and not the judge, making the law. 
 Do you want such judges in Massachusetts? or do you want 
 men on the Supreme Bench and in the Court of Common 
 Pleas who are not exceeded by the advocates at the bar, 
 judges who cannot be controlled and led away, who will 
 enforce the laws as the Legislature says they exist, who will 
 give security to the weak as well as the strong, the poor as 
 well as the rich, who will show no favor or affection for one 
 or the other, judges who can and will execute the law 
 equally, impartially, and independently ? 
 
 But, say the friends of the new plan, may not the judges 
 be reappointed at the expiration of the 'ten years? Mr. Hoar 
 answered this question by citing the case of the sheriffs under 
 the present system, who, on every change of political power, 
 though most excellent officers, have been turned out to 
 make room for the political friends of the administration. Sup- 
 pose the time of a judge near its close, and he has an impor-
 
 TENURE OF JUDGES. 181 
 
 tant case to decide, the decision of which may affect those 
 who have the power of his reappointraent, will not this fact 
 have a tendency to swerve his judgment ? Are we as sure of 
 impartial judgment, as though the judge were entirely inde- 
 pendent of the Executive ? 
 
 Is this change, he asked, a trifle, or a matter of most im- 
 mense importance ? To him it appeared to be the latter. It 
 is a blow struck at the Judiciary, and, if carried into effect by 
 our votes, will be felt over the whole State. And this is not 
 all. The whole proceedings in regard to the Judiciary have a 
 tendency to break it down. Will you be likely to get the first 
 and best men in the profession to take the office on such con- 
 ditions ? There is a difficulty even now in getting them to do 
 it. Common sense teaches us that they will not accept it, if 
 it be made still less worthy of acceptance. Does there any 
 evil exist which will justify such a change as is here proposed ? 
 He knew of none. 
 
 Another proposed change is, that the Clerks of Courts, in- 
 stead of being appointed by the Judges, shall be chosen by the 
 people for a term of three years. Where is the reason for 
 this? He knew of but one, that there may be one more 
 office to be scrambled for in our elections. In what possible 
 way are the people to be benefited by this change ? How 
 well are the people qualified, let me ask, to vote for a Clerk 
 of the Courts in Nantucket, or in Berkshire, or Franklin, or 
 in your own county? Why should not the courts, who know 
 what kind of men they need to record their rulings and de- 
 cisions correctly, have the power to appoint their own clerks, 
 and such men as they wish ? He hoped this question would 
 be answered at the ballot-box. Did you ever know a clerk 
 appointed by a court for a sinister purpose ? Can the people 
 do it as well as their agents, the judges? No, the whole 
 thing is impossible, radically wrong and unnecessary, except 
 for the purpose of the politician who wishes to flatter the 
 people for his own benefit. If you elect the Clerk of the 
 Court by the people, why not elect the Clerk of the House 
 of Representatives ? Suppose the clerk who holds office by 
 the power of the people should refuse to obey the court, the 
 public business must suffer unnecessary delay, or the Judges 
 17
 
 182 TENURE OF JUDGES. 
 
 of the Supreme Court must go as humble suitors to the Ex- 
 ecutive, and ask for the removal of the clerk. Do you believe 
 they will do this ? 
 
 Mr. Hoar then took up the provision in the Bill of Rights, 
 in which the executive, legislative, and judicial departments 
 are prohibited from exercising the powers or duties of each 
 other, and most clearly showed that it was violated in the pro- 
 posed Constitution, by allowing the Governor, with the con- 
 sent of the Council, or without that consent, on complaint for 
 incapacity, misconduct, or maladministration in office, to re- 
 move Judges of Probate, Commissioners of Insolvency, County 
 Commissioners, &c. Not only can the Governor remove such 
 officer, but he may appoint some one to his office until 
 the case be heard and settled ; and in the mean time 
 parties interested in this removal may have secured their own 
 ends, to the wrong and injury of other parties equally inter- 
 ested. It is estimated that once in twenty years the entire 
 property of the Commonwealth passes under the inspection 
 of the Judges of Probate, and it is, therefore, of the highest 
 importance that they should be straightforward, high-minded 
 men. Will this new plan tend to secure such ? He thought 
 not. Conferring this power of the removal of the Judges of 
 Probate and other officers by the Governor, is also creating a 
 new court, a new judicial power in our State, hitherto un- 
 known. 
 
 And there is still another blow at the Judiciary. It is pro- 
 vided in one of the separate propositions, that the jury, and 
 not the judge, shall settle the law in all criminal cases. What 
 will be the result? Men who compose the juries do not de- 
 vote their lives to the study of the law. Will they be as 
 likely to decide right as the judges ? And who is to correct 
 their decision in case it be wrong ? With the present system, 
 the decision of the judges in the lower courts, if wrong, can 
 be corrected by the judges of the Supreme Court. If juries 
 decide the law, there is no possible way of settling their cor- 
 rectness. And the result will be, that you will have no system 
 of law at all. The same law will be construed differently in 
 different courts, and, it may be, on different sides of the same 
 court-house. It will be a government of men, and not of
 
 JURIES JUDGES OF THE LAW. 183 
 
 laws; and questions involving the property, character, life 
 even, will be made to depend upon the views of the men who 
 may be on the jury. A man guilty of murder may be con- 
 victed or get clear, according to his popularity or unpopularity 
 with the jury. 
 
 In their manner of submitting the new plan to the people, 
 the friends of the measure have shown that they are afraid to 
 trust the people. It is so arranged that we must take the 
 whole or none. Is this fair, or right, or honest, towards the 
 people ? Must we swallow poison to get a mouthful of food ? 
 
 There were other points upon which he would have spoken 
 had there been time; but he must stop. What, he asked, 
 shall we do ? Why should we make these innovations? and 
 what shall we deserve if we go to tampering with those great 
 principles of equality and of right which have been secured 
 to us as the fruits of the labor of such men as formed our 
 present Constitution ? What became of the old Italian re- 
 publics, and where is the French republic? The political 
 parties quarrelled and secured to themselves anarchy and 
 despotism ; and that is what we shall merit if we trifle with 
 such blessings as have been given to us, and under which we 
 have so abundantly prospered. High-minded men, who under- 
 stood its provisions, made the present Constitution, and it has 
 answered its purpose. Our duties in regard to it we are now 
 to answer at the ballet-box.
 
 ADDRESS 
 
 TO THE 
 
 CITIZENS OF TAUNTON, 
 
 DELIVERED, AT THEIR INVITATION, 
 NOVEMBER 4 -7, 1853, 
 
 BT 
 
 HON. MARCUS MORTON. 
 
 17 '
 
 ADDRESS OF MH. MORTON. 
 
 MR. CHAIRMAN, I desire, in the outset, to ask permission 
 to dispense with the customary parliamentary form of address- 
 ing an assembly through its presiding officer, and to speak 
 directly to my fellow-townsmen here assembled. 
 
 THE CHAIRMAN. Proceed, Sir, in the way most agreeable 
 to yourself. 
 
 FELLOW-CITIZENS, It gives me pleasure once more to 
 look upon your frank and honest upturned countenances, and 
 I hope, on this evening, to present to you, in return, one as 
 honest and frank as your own. You cannot but feel some 
 surprise to see me addressing a political assembly, on the eve 
 of an election ; and I confess that I feel no little surprise 
 myself. It is now nearly a quarter of a century since I ap- 
 peared in this capacity. I had fully determined not again to 
 be drawn from the quiet and peaceful pursuits of private life, 
 to take any public part in the turmoil of party strife and of 
 political warfare. I intended to confine my political labors to 
 what is every citizen's duty, to a careful inspection of the 
 proceedings of our public agents, to the free discussion with 
 my neighbors of public measures, and to the efficient expres- 
 sions of my opinions, by my suffrage, at the polls. 
 
 But when my fellow-townsmen desired my services in the 
 Convention called to revise and amend our Constitution, I 
 could not well resist the call. The duty required, though 
 political, was so unlike ordinary political duty, and, in my 
 view of it, so unlikely to involve party spirit, and its manoeu- 
 vres and intrigues,, that I could see no good reason for with-
 
 188 ADDRESS OF MR. MORTON. 
 
 holding my labors and my experience, if they were deemed of 
 any value. I accordingly entered into the Convention, and 
 that I got deeply interested in the proceedings of that body, 
 and was greatly disappointed in its transactions and in the 
 results of its labors, I will not attempt to conceal. My views 
 on these matters were well known. But it was not my pur- 
 pose to appear before the public to defend or advocate them. 
 And I declined many invitations to address audiences in 
 various places, from the Cradle of Liberty in the metropolis to 
 the town-hall of a country village. But the invitation of my 
 Democratic constituents, which was addressed to me, in com- 
 mon with my colleagues, requesting us to give an account of 
 the proceedings of the Convention, and our views of the result 
 of its labors, came upon me with the potency of a mandate. 
 Believing, as I do, that every representative is strictly respon- 
 sible to his constituents, and imperatively bound to render an 
 account of his stewardship when called upon by them, I could 
 not decline this invitation. 
 
 I have no authority to speak for my colleagues. But I will 
 assume to say, that in devoted attention to the business before 
 the Convention, in sincere endeavors to promote the welfare 
 and best interests of the people, and to render our Constitution 
 more equal, just, and democratic, we were not surpassed by 
 the delegates of any other town. And I trust I may say in 
 your presence, that we, in a good measure, succeeded in rep- 
 resenting the true interests, opinions, and wishes of our con- 
 stituents. 
 
 I now speak for myself. And I enter upon the duties 
 required of me with pleasure and with grief. While it gives 
 me pleasure to respond to your call, and to lay before you, for 
 your approbation or condemnation, my own course of action, 
 it is with grief and regret that I present to your consideration 
 the results of the labors of the Convention. These I can 
 neither approve nor justify. Indeed, I will not deny that it is 
 a source of gratification to me, that I have been furnished 
 with this opportunity to enter my public protest against meas- 
 ures so unrighteous and anti-democratic as these seem to 
 me to be. 
 
 Before commencing the discussion of the proposed consti-
 
 ADDRESS OF MR. MORTON. 189 
 
 tutional amendments, I must ask permission to make one or 
 two more preliminary remarks. 
 
 The call which brings me* before you this evening comes 
 directly from my Democratic fellow-citizens. But I am most 
 happy to see before me citizens of all shades of political 
 opinion. And to you all I acknowledge my responsibility, 
 and to you all do I render my account. I cannot, and I 
 would not if I could, disguise the character in which I appear. 
 I am a Democrat. I have served in the Democratic ranks for 
 almost half a century. Although I have, on two or three 
 occasions, been constrained to differ from my political friends, 
 I have never joined any other organization. It is true I have 
 now and then attended mass meetings of every known party, 
 to hear distinguished orators, whose doctrines I have some- 
 times approved and sometimes disapproved, but I never was 
 a delegate to or attended any political convention other than 
 a Democratic convention. And although I may not yield so 
 implicitly as some to the binding force of party conventions, 
 and do not deem the decrees of a caucus more obligatory 
 than the dictates of conscience, I believe I have as seldom 
 deviated from the caucus nominations as any man who has 
 attended so many elections. I have lived and trust that I 
 shall die in the Democratic faith. I must therefore test the 
 proposed constitutional amendments, and the proceedings of 
 the Convention, by Democratic principles. But in avowing 
 with perfect freedom my own opinions, I trust I shall manifest 
 a becoming regard to the opinions and feelings of others. 
 
 I do not intend to speak of the approaching elections of 
 State officers. Nothing could induce me to enter into a pub- 
 lic discussion of that subject. I may, however, remark, in 
 passing, that, of the four gubernatorial candidates, two may 
 be deemed Democrats and two Whigs. Perhaps my Whig 
 friends may not accede to the correctness of this classification. 
 But if they think that one of them does not belong to any 
 "healthy" Whig organization, they must remember how 
 laboriously and zealously he has served them in former times, 
 and that he has never renounced any of the sentiments which 
 he then advocated. They may say, as they have said before, 
 that he and his Whig associates had beqome such ultraists
 
 190 NON-RESIDENT MEMBERS. 
 
 and extremists, that, having lost their homogeneity with their 
 old party, they had sloughed off'; and having failed to obtain 
 that advancement which they thought they deserved, had 
 formed a new organization, in the hope that they would there 
 find a more just appreciation of their merits, and a more ade- 
 quate remuneration of their services. But between these sev- 
 eral candidates it is not my intention to express an opinion, or 
 even to indicate my own preference. 
 
 One important error in the constitution of the Convention 
 was, in the outset, overlooked, or not sufficiently considered. 
 The act authorizing the Convention was so construed as to 
 justify towns in electing delegates who were not inhabitants 
 of the towns by whom they were elected. This, in my opin- 
 ion, is a capital error. It is the worst feature in the election 
 of the members of the British House of Commons. Members 
 thus chosen may be wise statesmen and skilful constitution- 
 mongers, but they cannot be true representatives of their con- 
 stituencies. A knowledge of a people, acquired by a continued 
 residence among and intercourse with them, can alone suffi- 
 ciently identify a man with them to enable him truly to repre- 
 sent their wishes and wants, their peculiarities and principles. 
 The representative of the people should correctly reflect the 
 minds of his constituents, which he can never do unless he 
 partakes of their labors, their wants, and their enjoyments, 
 and is one of them. The representative should be a daguerre- 
 otype of his constituents, which an absentee can no more be, 
 than such a likeness of an individual can be taken in his 
 absence. 
 
 It is the right of the people to originate and form their 
 frame of government, as well as to adopt and ratify it in the 
 shape of a written constitution. And the representative of 
 each constituency should bring into convention a true likeness 
 of his principals, and thus, by comparing, assimilating, and 
 amalgamating the views of the several constituencies, an 
 aggregation may be formed which will be the true voice of the 
 people of the whole Commonwealth, and the nearest possible 
 approximation to the voice of each individual in it. 
 
 Another very great and insuperable objection to non-resi- 
 dent members is the door which it opens for political intrigue
 
 NON-RESIDENT MEMBERS. 191 
 
 and corruption, and for the outside influence of practised poli- 
 ticians and party managers. It impairs the free choice and 
 independent action of the electors themselves. There were in 
 our Convention some ten or twelve non-resident members, 
 some of whom never saw the towns which they were chosen 
 to represent; and it is well known that extraneous appliances 
 procured the election of some, if not all, of them. I this 
 morning accidentally read, in one of the most respectable 
 newspapers in the United States, an article written by a very 
 able and strenuous advocate of the proposed amendments, of 
 the Free Soil party, and of their candidate for Governor, in 
 which he says, " The friends of State Reform contrived to 
 procure the nomination of a number of distinguished Demo- 
 crats and Free-Soilers as candidates for the Constitutional 
 Convention from towns of which they were not residents. 
 These were in all cases triumphantly elected. These nomina- 
 tions were chiefly effected through the influence of GENERAL 
 WILSON." 
 
 It is not my intention to impute any thing improper or dis- 
 honorable to the non-resident members of the Convention, 
 either in the mode of their election or in their conduct in the 
 Convention. I deal not with motives. My object is to show 
 the error of the principle. But. when I name men so distin- 
 guished for their eloquence, their learning, and their political 
 experience as C. Sumner, Boutwell, Hallett, Griswold, Keyes, 
 Dana, I. Sumner, Alvord, and Burlingame, it is unnecessary 
 for me to add that they exercised a controlling influence 
 over the Convention, and that the results of its deliberations 
 are different from what they would have been had their con- 
 stituencies been represented by their own fellow-townsmen. 
 That the results are wiser, perhaps we ought to presume; 
 but whether more consonant to the will of the people remains 
 to be tested. 
 
 Our old Constitution was framed by wise and patriotic 
 statesmen. It contained all the elements of a free govern- 
 ment. It was democratic in principle, and adapted to the 
 genius of a free people. Under it we have grown and pros- 
 pered beyond precedent. It has secured to our people liberty 
 and happiness. We have enjoyed our political rights to an
 
 192 CONVENTION OF 1820. 
 
 extent and with a security which a wise Constitution alone 
 can guarantee. 
 
 One of the great and crowning excellences of a democratic 
 government is, that, without a change of its principles, it 
 always adapts itself to the ever-changing circumstances of the 
 people. Hence it ever keeps up with, and promotes and sus- 
 tains, the progressive improvements of the State, in popula- 
 tion, wealth, and knowledge. These changes called loudly for 
 a change in our Constitution. A principle of representation 
 which very nearly approximated to equality, and was fair and 
 just in a population of two hundred thousand, became ex- 
 tremely imperfect and unrighteous when that population had 
 doubled and quadrupled. The great increase of the Com- 
 monwealth rendered alterations in other respects necessary. 
 Accordingly, a Convention was called in 1820 ; and though it 
 did not accomplish all which the friends of reform desired, yet 
 it made many improvements, and set an example of modera- 
 tion and patriotism worthy of imitation, and which had much 
 influence in recommending to the favor of the people the last 
 Convention. 
 
 Many amendments were proposed, some of which were 
 adopted and some rejected. But the greatest imperfection of 
 the whole, that of the representation, remained unremedied. 
 Indeed, every attempt to amend this increased the evil, both 
 in principle and practice. The gross inequality of the repre- 
 sentation and the unwieldy magnitude of the House were 
 universally condemned, and a remedy called for by the whole 
 mass of the people. This, with other amendments which 
 time and progress had rendered necessary, seemed to demand 
 a revision. 
 
 Accordingly, a Convention was proposed. It was- at first 
 rejected by the people ; but upon a second trial it was adopted 
 by about seven thousand majority. The manner in which the 
 Convention was called, and the majority obtained in its favor, 
 were exceedingly unpropitious to the wise and beneficial action 
 of the body. The leader of a certain party, who has been 
 publicly and boastfully denominated "the champion of the 
 Commonwealth," declared in debate, in the Convention, that 
 this majority was " obtained with immense labor, and the
 
 PARTY SPIRIT. 193 
 
 writing and distributing of almost innumerable letters." The 
 question of a Convention assumed the form of a heated party 
 contest and a fierce struggle for ascendancy between the con- 
 tending parties. 
 
 Under these circumstances, I entertained great doubts of 
 the wisdom of calling the Convention. I saw the full force 
 of these objections, and cannot offer the apology of ignorance 
 or inadvertence. But the defects of the old Constitution were 
 so gross, and called so loud for amendment ; the Convention 
 of 1820 furnished so favorable an example of coolness, delib- 
 eration, and freedom from party ; and I had so strong a hope 
 and belief, that, whatever heat might have existed, when the 
 people came to elect delegates, they would forget their party 
 in recollection that the Constitution was to be made, not for a 
 year, but for perpetuity, not for a party, but for the whole people, 
 that I voted for it. I will not shrink from my share of the 
 responsibility of having called the Convention. But I need not 
 now say, that, had I foreseen the course which the Convention 
 adopted, and the result to which they came, I should have 
 voted differently. 
 
 But although I saw the political contest in the election of 
 delegates, and the party character of the delegates themselves, 
 I still clung to the hope, that, when we entered into the hall of 
 constitutional legislation, we should remember that the revis- 
 ion of the Constitution, and the introduction of new, or the 
 modification of old principles of organic law, required the 
 coolest judgment and the most dispassionate consideration ; 
 and that, on passing the threshold of the temple, we should 
 shake from our feet the dust of party spirit, party prejudice, 
 and party interest. But in this I was disappointed. And per- 
 haps I ought to have expected that the political feeling which 
 prevailed in the election of delegates would, by them, be car- 
 ried into the Convention, and there mark, if it did not mar, its 
 proceedings. I claim no exemption from the influence of 
 party. And I suppose other younger and more aspiring men, 
 who have a longer and brighter future before them, are equally, 
 and perhaps more, liable to the same human infirmity. 
 
 But the worst aspect in which this subject presents itself is 
 the party character which the question assumes before the 
 18
 
 194 PARTY TACTICS. 
 
 people themselves. We find them divided, upon the question 
 of the adoption of the constitutional amendments, very nearly 
 according to their political preferences. Almost all of one 
 party are opposed to the adoption of them, and nearly all of 
 the other are in favor of their adoption. Can such a division 
 be the result of a dispassionate and impartial investigation of 
 the subject ? I fear not. I have heard it said in high places, 
 that " it is enough for me to know that the Whigs oppose a 
 measure. If they oppose it,. I will vote for it." Is this the 
 dictate of good sense and a single desire to promote the 
 public welfare? or is it the offspring of political animos- 
 ity and a narrow-minded, bigoted devotion to party? Such 
 blind adherence to party dictation, though wrong in itself, may 
 not be very dangerous in an annual election, when the error of 
 one year may be corrected the next; but let me remind you, that 
 we are now about to establish fundamental rules, which must 
 govern the action of our children and our children's children 
 for many generations. Let me then exhort you to lay aside 
 all political predilections and preconceived notions of the effect 
 which our decision may have upon the one party or the other. 
 Party is short-sighted. Party is blind. All artificial contrivances 
 to build up a party always react upon their authors, and sooner 
 or later prostrate the party they were intended to build up. 
 Be assured that the most certain way to promote a just cause 
 is always to adhere to right principles, and to adopt wise and 
 righteous measures. 
 
 I have seen, with deep regret, that party tactics are resorted 
 to, and political arrangements made, to carry this constitu- 
 tional measure, just as if it were a mere struggle for party 
 ascendency. Trained orators, practised political speakers, are 
 employed to travel from town to town, all over the State, to 
 address the people on this important subject. Do they pre- 
 sent both sides of the question to their hearers ? or do they 
 appeal to their political prejudices and party fealty ? Would 
 it not be wiser, and more respectful to the people, to place all 
 the documents, bearing on this subject, in every man's hands, 
 to be carefully examined by his own fireside and coolly dis- 
 cussed with his neighbor. 
 
 And do these itinerant orators devote themselves to all this
 
 WHAT THE CONVENTION NEGLECTED. 195 
 
 labor from purely disinterested and patriotic motives ? Are 
 they so devoted to the welfare of their country, is their 
 love of the people so intense, are they so exceedingly anx- 
 ious to procure the adoption of a wise and just constitution, 
 that they are willing for weeks and months to neglect their 
 ordinary business, and devote their whole time to this object? 
 May there not be, after all, some secret self-interest, unknown 
 perhaps to themselves, lurking at the bottom of this burning 
 zeal ? May not certain brilliant offices, for the attainment of 
 which the successful result of this struggle may seem to open 
 the door, glitter before their eyes. May not any of those 
 talented and eloquent advocates, from one who has graced 
 the chief magistracy, to the more humble aspirant to official 
 honors, honorably aspire to these high places, and all un- 
 consciously labor for their attainment. Were I as young, 
 and talented, and learned, and eloquent as they, I doubt not 
 that I should be as likely to be influenced by the same con- 
 siderations. 
 
 These remarks are in some measure preliminary. And in 
 answering your call for an account of the proceedings of the 
 Convention, I know not where to enter upon the mass of mat- 
 ter before us ; nor how better to address myself to the work 
 than by acknowledging, in the language of the general Epis- 
 copal Confession, that " we have left undone those things 
 which we ought to have done, and we have done those things 
 which we ought not to have done." The inference which 
 follows I will leave others to draw, if they think proper. 
 
 This quotation suggests a convenient division of this great 
 subject into three branches. And, in my opinion, a fair in- 
 vestigation of these three branches will show enough in what 
 we omitted to do, enough in what we did do, and enough 
 in the manner in which we did it, to condemn our whole pro- 
 ceedings, and to render the duty of the people imperative, to 
 mark the whole action of the Convention with decided dis- 
 approbation. This is due to principle and to precedent. It 
 is due to themselves and to their posterity. 
 
 We are, then, to consider what the Convention neglected to 
 do which it was their duty to do, what they did which their
 
 196 SOCIAL COMPACTS. 
 
 duty forbade them to do, and the manner in which it was 
 done. In each of these branches will, in my opinion, be 
 found that which should condemn the whole. 
 
 First, let us look at the sins of omission. 
 
 What are the duties of the members of such a Convention ? 
 Are they to make such a Constitution as they individually 
 prefer, and then submit it to the people for their action, or 
 are they, in originating and forming the instrument, to exe- 
 cute the will, and to represent the opinions and principles, of 
 the people who elected them ? A monarch of Europe, who 
 was about to give a constitution to his subjects, would hold 
 to the former. But no one who believes in democratic gov- 
 ernment can hesitate to adopt the latter. In this country, the 
 right of the people to originate and establish civil government, 
 and to alter and amend their constitutions, at their pleasure, 
 is the universally accepted doctrine. 
 
 The first social compact ever written was that formed on 
 board the Mayflower, in the harbor of Cape Cod, in 1620. In 
 that case each individual, acting in his original sovereign capa- 
 city, put his own name to the compact. All stood on a perfect 
 equality. All participated alike in the execution "of the com- 
 pact, and administering the government under it. This they 
 continued to do, till their number became so large that they 
 could not all act together. Then it became necessary to resort 
 to some mode by which each individual might execute his equal 
 share of the power, without his personal attendance. This 
 could only be done through duly authorized agencies. One 
 agent could speak and act for a hundred or a thousand, and 
 as long as each agent acted for the same number of persons, 
 each preserved his equal relative right and power, and no 
 one gained any advantage over his neighbor. And thus orig- 
 inated the notion of representation, which is a modern inven- 
 tion unknown to the ancients. It is founded on the principle 
 of perfect equality, each individual holding just the same 
 weight with every other individual in the community. 
 
 One hundred could by their direct action form a govern- 
 ment for themselves. But when that hundred had become a 
 million, they could not assemble, deliberate, and act together ; 
 they could only institute or amend their form of government,
 
 COST OF THE CONVENTION. 197 
 
 in the first instance, through their agents. These agents could 
 prepare, and propose to the people for their adoption, such 
 provisions as might be deemed promotive of the best interests 
 and just rights of the whole. But in doing this, they should 
 be the just, true, and faithful representatives of those who 
 appointed them. They had no right to inquire what would 
 benefit themselves, or promote the interest of any party, or 
 enterprise, or section of the Commonwealth. But they were 
 bound truly and faithfully to execute the will of their con- 
 stituents. 
 
 Our Convention was called for specific purposes, to redress 
 existing grievances, which had been indicated in various ways 
 and were perfectly well known and understood by every man 
 in the community, and of course by every member of the 
 Convention. The delegate, then, who thwarted, or neglected 
 to carry out, the purposes which he knew were entertained by 
 the people when they called the Convention, or who evaded 
 their wishes in any respect, was unfaithful to his constituents, 
 and violated a fundamental principle of free government. 
 
 One of these purposes of the Convention, though not the 
 most important one, was the reduction of the expenses of the 
 government. During the last thirty years our State expendi- 
 tures have increased from $ 200,000 to $ 600,000 per annum. 
 There had gone up a universal complaint of this extrava- 
 gance, and an imperative demand for redress. How did the 
 Convention meet this demand ? The first step was to in- 
 crease their own compensation by an addition of fifty per 
 cent, to the old established allowance. Let the acts of the 
 Convention be ratified, and we have, by the voice of the peo- 
 ple, which never will be controverted, a precedent established, 
 that will add one third to the expenses of legislation in all 
 after time. This single item will more than defray the ex- 
 penses of half a dozen conventions, should they be deemed 
 necessary, to do what this Convention neglected to do, or 
 to undo what it did amiss. 
 
 I do not intend to argue that three dollars per day was 
 more or less than the services of the members were worth. 
 I have no standard by which to measure the value of intel- 
 lectual labor, or to compare the mental capacity of one man 
 18*
 
 199 REFORMS NEGLECTED. 
 
 with another. And I probably should not have noticed this 
 subject, had I not a desire to advance and recommend a 
 principle. I hold that legislators should never be paid for 
 their services. This is the immemorial rule in the British 
 Parliament. Motives of patriotism, a love of distinction, a 
 desire to be useful to the community, laudable ambition, 
 furnish inducements quite strong enough to stimulate men to 
 accept and seek the place of legislators. I would not add 
 to them any mercenary stimulus. But I would never shut 
 the door of promotion against the poor, any more than the 
 rich. I would therefore allow a fair remuneration of the ex- 
 penses incurred ; for which purpose the long established per 
 diem of two dollars would be amply sufficient. 
 
 Another way in which the people demanded a reduction of 
 the expenses, was by a great diminution of the number of 
 representatives. How has this demand been regarded ? Just 
 as the last was. By an increase, instead of a reduction. 
 There was no one reform so loudly, so universally, and so im- 
 peratively demanded, as the diminution of the House of Rep- 
 resentatives and the equalization of the basis of representation. 
 But the action of the Convention on this subject, not being 
 entirely negative, more properly belongs to the second branch 
 of the discussion. If my strength holds out, it shall be fully 
 treated hereafter. 
 
 Another demand of the people was, that useless offices should 
 be abolished. This was required, not only for the purpose of 
 saving expense, but for the purpose of carrying out that purely 
 democratic principle which tolerates no more offices than are 
 necessary for the proper transaction of the public business. 
 
 Foremost among the unnecessary officers were ranked the 
 Councillors. The abolition of the Executive Council, and the 
 transfer of the Lieutenant-Governor to the chair of the Senate, 
 certainly were among the reforms desired and expected by the 
 people. Since an Auditor had been established to settle ac- 
 counts ; since the militia had got so reduced as to leave only a 
 light duty for the Adjutant- General to perform ; since the pro- 
 posed amendments provide for the election of most of the 
 officers by the people, and since the remainder of the appoint- 
 ments can be transferred to the Senate ; and since any board
 
 REFORMS NEGLECTED. 199 
 
 of officers may be authorized to perform the clerical duty of 
 counting votes, very little is left for the Council except their 
 share of the pardoning power, a power which, from the 
 nature of their board, they are very ill qualified to administer. 
 A motion was made to dispense with these officers. A long 
 discussion was held, and soon some indications began to man- 
 ifest themselves of a principle which I fear had too much in- 
 fluence in other deliberations of the Convention. Here were 
 nine easy, honorable places, well suited to the tastes of retiring 
 politicians, and perhaps nine times nine delegates who might, 
 if parties could be made to take a favorable turn, reasonably 
 hope, at some day or other, to occupy these comfortable and 
 dignified seats. It is not my intention to impute sinister mo- 
 tives to any one ; but I cannot shut my eyes to the common 
 frailties of our nature. The question dwindled to a very small 
 point, and the result was to reduce the Council from nine to 
 eight, and vest the appointment in the people. 
 
 Another great evil everywhere complained of was the 
 length of the sessions of the legislature. From two months 
 they had from time to time been extended to three and four, 
 and even five months. A remedy for such a gross abuse of 
 power by a limitation of the annual period of service was 
 loudly called for by the whole community. The joint com- 
 mittee of the Legislature, who recommended, and may be con- 
 sidered the authors of, the Convention, in their report, which 
 was accepted by the Legislature, say, " There is nothing in the 
 legislation of Massachusetts which has given rise to more 
 well-grounded complaints among the people, than the long 
 sessions of the last four or five years." They further inquire, 
 "What necessity exists for protracting the sessions four or five 
 months each year ? The committee believe, that a session of 
 one hundred days will prove sufficient for the transaction of 
 all necessary business by the Legislature." 
 
 To these demands of the people, to this recommendation 
 of the authors of the Convention, to this decisive action of 
 the Legislature, the Convention could not be both deaf and 
 blind. What remedy for these crying evils did the Conven- 
 tion propose ? Early in the discussion of this subject, I of- 
 fered the following amendment: " The Legislature shall assem-
 
 200 REFORMS NEGLECTED. 
 
 ble every year; but shall never, except in case of insurrection 
 or invasion, continue in session longer than ninety days, nor 
 sit, during any year, more than one hundred days." That 
 this was an effective limitation, all admitted. Fellow-citizens, 
 was it a reasonable one ? I have no doubt you will say that 
 it should have been shorter rather than longer. It meant 
 exactly what it said. Should it have been adopted ? And 
 was it adopted ? No. It was rejected. It would not do to 
 leave a blank. And what stands in its place ? " No compen- 
 sation shall be allowed for attendance of members, at any one 
 session, for a longer time than one hundred days." 
 
 This,' at first view, looks like a limitation of the time during 
 which the Legislature may sit. But a slight examination will 
 show that it is delusive and wholly inefficient as a restraint, 
 and opens a door for worse evils than protracted sessions. 
 After the expiration of the hundred days, when members of 
 small means, and especially those from the country, shall have 
 returned to their homes, a few men of wealth, who are indiffer- 
 ent about their pay, and men who have special purposes to 
 serve, might continue the session till they had accomplished 
 the objects of their ambition or their self-interest. 
 
 But this limitation is confined to one session; and not the 
 slightest obstacle is thrown in the way of a repetition of the 
 sessions, and the duplication of the hundred days, to the end 
 of the year. And the delegates who proposed and sustained 
 this limitation, and rejected the former one, were perfectly 
 familiar with the political transactions of other States, and 
 knew full well that the Legislature of New York, from whose 
 constitution this provision was copied, were, at the very time 
 when this was proposed, discussed, and adopted, holding an 
 extra session, and drawing their daily pay on the second hun- 
 dred days, as legally and cosily as if their constitution did 
 not contain a word purporting to limit their sittings. The 
 proposed limitation is therefore inefficient in practice, as well 
 as deleterious in principle. It is also delusive, calculated to 
 mislead the people, and to induce them to support the new 
 Constitution, in the hope and belief that they will get a reduc- 
 tion of the legislative sessions, when in fact what they deem 
 to be a limitation is both ineffectual and dangerous.
 
 STATE DEBTS AND LOANS. 201 
 
 Another subject, which had long been a source of deep in- 
 terest and anxiety to the people in most, if not all, parts of the 
 Commonwealth, was the limitation of the power of the Leg- 
 islature to involve the State in debt, and especially to loan the 
 credit of the State to private individuals and corporations. 
 The call for this limitation had been long and loud and in- 
 cessant. This had ever been a cardinal doctrine of the Demo- 
 cratic party. It had been the rallying-cry in their stump 
 speeches and electioneering addresses. Most of the leading 
 members of the majority in the Convention had again and 
 again resorted to it, and upon it laid the corner-stone of their 
 electioneering arguments. Did they rely upon it as a sound 
 principle, or did they resort to it as a mere electioneering 
 catch-word? If the former, how could they vote against its 
 adoption now they had the power ? I, for one, cannot admit 
 that I used it before the people as a mere artifice to delude 
 them, and surreptitiously obtain their votes. I then believed, 
 and still believe, that the doctrine is sound and important. If 
 there is any one thing which the people should tenaciously 
 hold on to, it is their own purse-strings. If there is any 
 one power which they should cautiously and sparingly grant, 
 it is the power to involve them in debt, and to sell or give 
 away their pecuniary responsibility. The people's money 
 and the people's credit are more safe in their own hands, than 
 in the hands of any agents they can appoint. 
 
 If there is any one governmental power more dangerous and 
 more liable to abuse than any other, it is the power of incur- 
 ring State debts and loaning State credit. It exposes the 
 members of the Legislature to all manner of influences and 
 temptations. They are beset by lobby members. They are 
 tempted by gastronomical appliances. They are courted by 
 excursions into the country ; and then some improvement of 
 great public good is to be accomplished, and to be done with- 
 out the possibility of injury to the State. And all that is 
 asked is the use of a little credit, just the signature of the 
 Governor, or some other officer. How can such influences be 
 resisted ? It would require more than Roman firmness to 
 withstand them. The only safety to the Legislature and to 
 the community is to retain the power in the hands of the 
 people.
 
 202 LOANING STATE CREDIT. 
 
 The dangerous nature of this power will be seen by refer- 
 ring to the use of it in all our States, and the abuse of it in 
 most of them. The debts and liabilities of all the States of 
 this Union amount in the aggregate to more than three hun- 
 dred millions of dollars. And some of the richest States in 
 our confederacy have, by the too prodigal use of this power, 
 brought themselves to the brink of bankruptcy. Look at the 
 great State of Pennsylvania, unequalled in mineral wealth, 
 and scarcely surpassed in other natural advantages, with a 
 debt of forty millions, the very interest of which at times she 
 has been unable to pay, and of course her credit has been 
 impaired and her fair fame tarnished. Look at the young 
 and vigorous State of Illinois, unequalled in the depth and 
 richness of her soil, and scarcely surpassed in the quantity of 
 it, so deeply involved in debt that she has not been able to 
 pay up the interest, and has had her growth and progress 
 greatly retarded. It is hardly necessary for me to refer to 
 another great State, which has been driven into the disgrace 
 of repudiation. 
 
 So alarming and all-pervading had the danger of this power 
 become, that nearly or quite every State which has recently 
 made or amended its constitution, has introduced some effi- 
 cient restriction upon it. Clauses of this kind may be found 
 in no less than nineteen of the State Constitutions. I sup- 
 posed that similar limitations would be adopted here by ac- 
 clamation. But in this, as in many other things, I found my- 
 self mistaken. 
 
 Several propositions were introduced, some of which were 
 at first sustained by a majority. Among others, I offered two 
 propositions. One was, that the Legislature should not have 
 the power to loan the credit of the State, without submitting 
 the matter to the people, and obtaining their assent. The 
 other was, that the Legislature should not have power to run 
 the State in debt, beyond one million of dollars, except to 
 repel invasion or suppress insurrection. But these proposi- 
 tions were rejected by the usual voices and usual majority. 
 And why was this done ? 
 
 A^ certain most interesting portion of the State was cut 
 off from convenient intercourse with New York and the
 
 HOOSAC TUNNEL. 203 
 
 Western States, by an impassable mountain of rock. And 
 the persevering inhabitants of this region and their indom- 
 itable representatives were determined that, as they could 
 not go over this mountain, they would go through it. And 
 in order to make a hole through which they could travel, 
 they thought it necessary to obtain from the State a few 
 millions of money, or of State credit, which could be con- 
 verted into money. Now, as this amendment would stand, 
 as impassable as the Hoosac Mountain, between them and 
 the State Treasury, they not only declared hostility to the 
 amendment, but avowed a determination, the execution of 
 which could not be doubted, that, if this motion prevailed, 
 they would oppose and defeat the whole Constitution. It is 
 therefore apparent, that a local object defeated an important 
 general constitutional provision, which, without such local 
 object, would have met with almost universal approbation. 
 
 Now it is, not within my present purpose to discuss the 
 Hoosac Tunnel question, or to inquire whether it is wise or 
 practicable to bore a hole some fifteen or twenty feet square 
 through a solid rock, the length of over four miles. I am 
 sure I wish them success, in all their laudable efforts. So I 
 do to the county of Barnstable. And could her sands be 
 covered with clay, and a little sprinkling of manure, I have 
 no doubt it would increase their productiveness, and thus add 
 to the common stock. But much as I love Cape Cod, the 
 birthplace of my ancestors, and much as I admire the beau- 
 tiful hills and fertile valleys and romantic scenery of Franklin, 
 I should not be willing to give either of them access to the 
 public treasury to enable them to accomplish any enterprise, 
 however desirable. Equal justice to the whole Common- 
 wealth forbids it. And I must protest against the introduc- 
 tion of local interests to control or influence our action on 
 grave constitutional questions. I cannot disguise, my ap- 
 prehension, that this Hoosac Tunnel enterprise had too 
 much to do with several subjects which were before the Con- 
 vention. Without a little aid from this source, how can we 
 account for the most extraordinary excess of representation 
 which has been apportioned to the vicinity of this gigantic 
 enterprise ?
 
 204 PLURALITY PRINCIPLE. 
 
 There is one more important reform which was demanded 
 by the people, that has been wholly neglected. I speak of 
 what the committee before referred to call " the present 
 cumbersome, formal mode of organizing the government." 
 They say, " Eight or ten days are now usually occupied in this 
 organization, which is nothing less than an annual waste of 
 six or eight thousand dollars of the people's money. The elec- 
 tion of Secretary of the Commonwealth, Treasurer, Receiver- 
 General, Auditor of Accounts, and Executive Councillors by 
 the people, with an application of the plurality principle to 
 these officers, as well as to the Governor, Lieutenant-Gover- 
 nor, and State Senators, would do much to remedy this evil." 
 " This change alone would in the course of ten years nearly 
 or quite defray the whole expense of the Convention." 
 
 This committee further say, " We recommend the adop- 
 tion of the plurality system in more of our elections. The time 
 and money which is now expended, and the party animosity 
 which is engendered by the numerous and unsuccessful at- 
 tempts to elect the various state, county, and town or city 
 officers, have become grounds of repeated and loud complaints 
 in all portions of the Commonwealth." " We are aware," 
 they say, " that the majority principle has long been consid- 
 ered the conservative element of our Constitution ; and many 
 sound and well-balanced minds may take alarm at a propo- 
 sition of this kind ; but we think that a moment's reflection 
 will satisfy the most fastidious, that their fears are groundless. 
 The practical operation of our Constitution for the last ten 
 years has been, in very many instances, to place in the most 
 important offices in the State men who have received, not a 
 majority, but only a plurality, of the popular vote. Indeed, 
 this result seems to be fast becoming the general rule, and not 
 the exception. And in some instances these offices have been 
 filled by men who have received not even a plurality of the 
 popular vote." 
 
 This proposition was not only recommended by the com- 
 mittee and by the Legislature, but everywhere demanded and 
 expected by the people. It was to remedy an existing crying 
 grievance. The expense and delay in the organization of the 
 government were the least of the evils resulting from this anom-
 
 POLITICAL BARGAINING. 205 
 
 alous and cumbersome mode of proceeding. It presents 
 strong temptations to office-seeking politicians and intriguing 
 hacks to form cliques and collateral factions. It not only fur- 
 nishes the opportunity, but presents ^strong Inducements, for 
 trading in offices, or, in the language of a distinguished mem- 
 ber of the Convention, for swapping^ and promotes dishon- 
 est management and official corruption. It also strongly and 
 directly tends to subvert and nullify a prominent principle 
 of our government. Instead of upholding the doctrine that a 
 majority shall govern, it very generally favors the election of 
 those who have neither a majority nor a plurality, but a very 
 inconsiderable minority. This has frequently occurred in the 
 administration of our own government. The voice of the 
 people has very often been disregarded, to give place to party 
 arrangement or political bargaining. 
 
 Under these circumstances, who could doubt that a mode 
 of making officers so very objectionable in principle, and so 
 pernicious in practice, would at once, and by a unanimous 
 vote, be abolished, and the plurality principle substituted for it, 
 a principle which, if it failed to command a majority, would 
 require at least the greatest number of votes, and prevent the 
 withdrawal of the election altogether from the people ? But 
 to the surprise and astonishment of all, this salutary principle, 
 which prevails in almost all democratic States, was rejected. 
 And what added to the surprise and astonishment was the 
 recollection, that it had been so strongly recommended by a 
 committee, many of the members of which were the leading 
 members of the Convention ; that the recommendation had 
 been adopted by a Legislature the members of which consti- 
 tuted a large portion of the Convention ; and that this rec- 
 ommendation was one of the principal causes for calling the 
 Convention. 
 
 But the efficient spring of action of which we had before 
 seen an inkling, and which was to give tone and character to 
 the proceedings of the Convention, now pretty fully disclosed 
 itself. The Free Soil party, though not the most numerous, 
 from its talents, its industry, and its ambition, manifestlv 
 exerted a controlling influence in the Convention, and the per- 
 petuation and augmentation of that party clearly showed itself 
 19
 
 206 FREE SOIL PARTY. 
 
 as a leading object of the Convention. Whatever retarded 
 or endangered the welfare or growth of that party, however 
 much desired by the people of the Commonwealth, could not 
 be expected to prevail. When, therefore, it was announced 
 that the plurality system would be unfavorable to that party, 
 its fate was sealed. It was said by some, that the three lead- 
 ing objects of the Convention were to build up the Liberty 
 party, to make its chief man Governor, and to bore the Hoosac 
 Tunnel. I will not vouch for the correctness of this state- 
 ment. But I feel bound to state my conviction, that, had 
 these been the leading objects of the Convention, it would 
 have pursued very nearly, if not precisely, the course which it 
 did pursue. 
 
 To show that I did not misunderstand the cause and spring 
 of action in the Convention, and have done no injustice to the 
 Free Soil or Liberty party, I beg leave to trouble you with a 
 single quotation on this point. When the question on the 
 adoption of the plurality rule was taken, the vote stood 159 
 in the affirmative and 159 in the negative. The President 
 voted in the negative, and thus the question was lost. A 
 leading Free-Soiler, whose talents and frankness no one will 
 question, upon the annunciation, immediately rose, and with- 
 out stopping to inquire whether there was any question be- 
 fore the Convention, declared his surprise at the vote just 
 taken, and said, " While I am filled with surprise, I must 
 also be allowed to express my gratification at the fact that 
 this Convention has been saved from lasting disgrace by the 
 casting vote of the chairman ; for had we lost this question, 
 what should we not have lost ? Every thing. The Liberty 
 party in the Convention would have been defeated in all the 
 most important matters." " Sir, had that amendment suc- 
 ceeded, I would have prayed Heaven, that the people might 
 have hissed the whole amended Constitution into oblivion." 
 Indeed! was the "Liberty party" "EVERY THING"? And 
 would the people, if that party had been discomfited, have 
 been bound to bury " in oblivion " the whole proceedings of 
 the Convention ? Was that body called to act for the 
 special benefit of the Liberty party, or any other party, or rather 
 were they not bound to look at the interest and welfare of the
 
 SINS OF OMISSION. 207 
 
 whole Commonwealth, without regard to its effect upon any 
 party organization? And if the people were to "hiss" their 
 disapprobation of any thing, should it not have been at that 
 course which was a disregard of pledges given, and of the 
 known will of the whole people ? 
 
 I have now commented upon the principal sins of omis- 
 sion of which the Convention was guilty. I have men- 
 tioned the principal demands of the people in calling the 
 Convention, and the main purposes for which it was called. 
 They were, 
 
 1. A reduction of State expenditures. 
 
 2. The limitation of the length of the sessions of the Legis- 
 lature. 
 
 3. The abolition of the Executive Council. 
 
 4. The limitation of the power of the Legislature to incur 
 State debts, and to loan the credit of the State. 
 
 5. The reduction of the number of the House of Repre- 
 sentatives. 
 
 6. The equalization of the representation. 
 
 7. The adoption of the plurality rule in every election. 
 
 All these were demanded by the people. All these were 
 among the principal purposes for which the Convention was 
 called, and without which it would not have been holden. 
 All these were well known to the members of the Conven- 
 tion. And to many of them the members were expressly, 
 and to all of them impliedly, committed. All these demands 
 have been slighted, or utterly disregarded. This was a violation 
 of delegated trust, a breach of representative duty, a con- 
 tempt of the will and power of the people ; and so far as these 
 matters were used to induce a call of the Convention, that 
 other amendments might be procured, it was very like obtain- 
 ing goods by false pretences. In this view of the subject, is it 
 not due from the people to themselves and their posterity, to 
 put the stigma of their marked condemnation and reproba- 
 tion upon the whole proceedings ? 
 
 I should now be pleased to enter upon the second branch 
 of my subject, and to consider what the Convention has done. 
 But I find myself, in the infirm state of my health, so much
 
 208 
 
 GOOD ALTERATIONS. 
 
 exhausted, that it will be impossible for me to continue my 
 remarks. 
 
 The meeting then adjourned to Monday evening, November 7, 
 when Governor Morton resumed his argument. 
 
 FELLOW CITIZENS, Among the several amendments of 
 the Constitution proposed by the Convention, there are some 
 which meet my approbation, and which, I presume, meet 
 yours, for which we should have been pleased to vote had the 
 Convention allowed us to exercise our judgments as free citi- 
 zens. Of these I shall say very little, because they have been 
 discussed and presented to the public in the most favorable 
 aspect by the numerous able orators who have- advocated the 
 adoption of the whole Constitution as proposed ; and because 
 I have neither time nor strength to discuss all the amend- 
 ments. It will be found, that almost all the most important 
 subjects for which the Convention was called have been 
 either neglected, or so unwisely treated as to furnish unanswer- 
 able reasons for the rejection of the whole. Those amend- 
 ments which are judicious and wise are comparatively of 
 minor importance, and many of them capable of being pro- 
 vided for by ordinary legislation. They therefore will not 
 justify any great sacrifice, certainly no violation of princi- 
 ple, to secure their adoption. 
 
 Among the proposed amendments, the one in relation to 
 the election of Senators is worthy of approbation. The 
 choice of legislators or other officers by single districts is un- 
 doubtedly, in itself, the best mode of election. The present 
 mode of electing Senators is not very objectionable. It has 
 some advantages over the proposed system. It is more near- 
 ly equal. The fractions in forty districts will necessarily be 
 greater in the aggregate than in thirteen. The formation of 
 the forty districts will be subject to political intrigue and 
 management, and to the process of " Gerrymandering," to 
 which the present districts, being permanent, are not liable. 
 Still, I give a decided preference to the single districts, and re-
 
 PRINCIPLE AND EXPEDIENCY. 209 
 
 gret that I have been deprived of the pleasure of giving my 
 vote in favor of their adoption. 
 
 The secret ballot is an old favorite with me. I recommended 
 it in an official message many years ago. And I can see no 
 good reason for limiting the application of a sound general 
 principle. Why confine it to national, state, county, district, 
 and city elections ? Why not include towns ? Is not the 
 secret ballot as much needed in Fall River or Taunton, as in 
 New Bedford or Springfield? I should be glad to see it 
 established in the Constitution, even in its present form, if I 
 could do no better. But it is a consolation that, should it be 
 rejected, it may still, if the people desire it, be provided for by 
 law. 
 
 The same remarks apply to the tax qualification of voters. 
 Every man contributes to the public treasury in what he eats 
 or wears, and many men in some things that they drink. I 
 would let every resident citizen vote, not because he pays 
 taxes, but because he is a man. If this be a sound principle, 
 as in the last case, why limit its operation to national and 
 state officers ? Why allow a man to vote for a president 
 or a governor, that you will not trust to vote for a field-driver 
 or a hog-reeve ? 
 
 A capital error seemed to pervade the deliberations of the 
 Convention. Expediency rather than principle, as in the two 
 cases just mentioned, seemed to be the governing rule of ac- 
 tion. This, if too much relied upon, always misleads. This 
 will lead the wisest and most sagacious man, though always 
 on his guard, into inconsistencies and absurdities. But prin- 
 ciple, like truth, never misleads. Truth is always the same, 
 and always consistent. No one truth, from the foundation of 
 the world to the present day, was ever inconsistent with any 
 other truth. So principles are always the same, and never 
 clash with each other. The man who invariably follows 
 these cardinal virtues, though simple and ignorant as a child, 
 and always unguarded, never need to fear that he will be led 
 astray, or will fall into inconsistencies and contradictions. 
 
 But there are many other amendments, such as the election 
 by the people of several officers who now hold office by 
 executive appointment ; the limitation of the tenure of judi- 
 19*
 
 210 GOOD AND BAD. 
 
 cial office, and some qualification of judicial power; the modi- 
 fication of the mode of electing the Governor by the Legisla- 
 ture ; the limited application of the plurality ; the mode of call- 
 ing future conventions; the enlargement of the school fund ; 
 the regulation of the militia ; the election of Councillors by the 
 people; the viva voce vote in the Legislature ; the abolition of 
 the power of the Legislature to grant bank charters ; the lim- 
 itation of their power to create corporations ; the prohibition 
 of the application of school money to sectarian schools ; the 
 grant of judicial remedies to persons having claims against 
 the State; the abolition of imprisonment for debt; the reg- 
 ulation of the writ of habeas corpus; the recognition of the 
 right of the jury, in criminal cases, to judge of the law as well 
 as of the fact; and probably some unimportant provisions 
 which have for the moment escaped my recollection. 
 
 Some of these amendments are sound and just, and might 
 very well become a part of our Constitution, while others are 
 objectionable and of dangerous tendency, and ought to be 
 rejected. But I do not deem them of sufficient importance 
 to justify me in pretermitting other great topics to discuss 
 them. The two last-named propositions relate to important 
 subjects. But I believe they were introduced by two distin- 
 guished lawyers, as a kind of relief for some private griefs 
 under which they were suffering. And as, in my opinion, 
 they impair and weaken the great principles which their au- 
 thors wished to establish and fortify, I can but hope they will 
 be rejected. 
 
 I have, fellow-citizens, hastened over these amendments, 
 not unimportant in themselves, and upon some of which I 
 should have been glad to express my views, that I might have 
 time to examine pretty fully the great subject which over- 
 shadows all the others; and in comparison with which all 
 the other amendments dwindle into insignificance. All of 
 you understand that 1 refer to the basis of representation. 
 This lies at the foundation of government, arid stamps upon 
 it the character of freedom or tyranny. If this be right, we 
 may overlook a thousand other errors, because this may, to a 
 great extent, correct or remedy them. But if this be wrong, 
 the vice is incurable, and, however wise all the other amend- 
 ments may be, this will pervade and condemn the whole.
 
 PRINCIPLE OF REPRESENTATION. 211 
 
 The power of making rules or laws for the regulation of 
 the people of the community is in all governments the great 
 and controlling power. In some countries enjoying a pretty 
 large portion of freedom, it is called omnipotent. As it is 
 exercised wisely or unwisely, will the government exert a sal- 
 utary or deleterious influence upon its subjects. 
 
 In the original institution of government and the establish- 
 ment of a civil community, the first step is to determine who 
 shall have a voice in the formation and administration of the 
 government, and the second is to determine how that voice 
 shall be manifested so as to have its just and proper effect. 
 In a community composed of a small number, each member 
 partakes in the management of the common affairs, and of 
 course each one has a voice exactly equal to every other one. 
 This is a pure and direct democracy. But when the number 
 becomes so large that they cannot all assemble together 
 for the transaction of the public business, some other mode 
 of expressing and ascertaining the voice of the whole must 
 be adopted. This can only be done through agencies or 
 proxies. And these, to express their true characters, are 
 called representatives. And a hundred representatives, each 
 one representing ten thousand, may as truly express the voice 
 of a million, as if each one of the million were present and 
 declared his voice in person. This notion of action by proxy 
 was so strongly fixed in the minds of the people, that in our 
 democratic neighbor, little Rhode Island, the votes for State 
 officers are, to the present day, called praxes, and are sent up 
 to the capital to be counted, instead of the elector's going him- 
 self to give in his vote. By the adoption of the system of rep- 
 resentation, no one parts with any of his natural rights. This 
 plan of representation is the most valuable invention in civil 
 government. It was never understood by the ancients. But 
 it is now a familiar doctrine, and indispensable in a free gov- 
 ernment. 
 
 It is based on the perfect equality of man. The doctrine 
 of equality, whether in direct action or representative agency, 
 is the fundamental doctrine of democracy. It is founded in 
 justice and natural right. It is sustained by the fiat of the 
 Almighty, and recognized and established in his revealed
 
 212 EQUALITY OF RIGHTS. 
 
 word. The commandments, " Thou shalt love thy neighbor 
 as thyself," and " Do unto others as ye would that they should 
 do unto you," are the foundations of democracy, and every 
 man who fully believes and always practises these precepts, 
 in their full extent and bearing, must be a good democrat. 
 
 I start, then, with the sacred principle, that, by nature and 
 the will of God, every man is born a freeman, and enters into 
 society with equal rights with every other man. This, I be- 
 lieve every one who makes any pretensions to democratic 
 principles will admit, is an indisputable political axiom. It 
 was so considered by the fathers of the Revolution and the 
 authors of our Constitutions, both national and state ; and 
 it is so recognized and established in the Declaration of Inde- 
 pendence and in numerous state Bills of Rights. On this 
 axiom rests the doctrine of equal representation, as it is an 
 inevitable corollary from it. Indeed, the amendment in ques- 
 tion acknowledges it, as it commences by declaring that, "in 
 order to provide for a representation of the citizens of this 
 Commonwealth founded upon the principles of equality," 
 the representatives shall be appointed in the way therein 
 specified. 
 
 Now let us examine the proposed amendment, and test its 
 provisions by these principles. If it comes up to, and fully 
 meets them, it may be set down as sound and wise, and wor- 
 thy of the acceptance of the people ; but if it essentially and 
 materially falls short or deviates from them, it should be con- 
 demned and rejected. Principles so important and sacred 
 cannot be violated with impunity. 
 
 It is said that in practice we cannot attain perfect equality. 
 This is true. Nothing is perfect in this world. But if we 
 cannot reach mathematical equality, is that any reason why 
 we should not approximate as nearly to it as we can ? Shall 
 we adopt a system of substantial, practical equality, or shall 
 we abandon the democratic rule, and resort to aristocratic prin- 
 ciples, or adopt an arbitrary rule, unsupported by any principle ? 
 
 I presume you all well know the provisions of the amend- 
 ment under consideration. It gives to each town having less 
 than one thousand inhabitants one representative six years in 
 ten ; to each town having from one to four thousand inhab-
 
 ABSURD INEQUALITY. 213 
 
 itants one representative every year ; and to larger towns, one 
 additional representative for every additional four thousand 
 inhabitants. This gives, in the whole, 430 representatives. 
 A recurrence to the last census will show that there are 64 
 towns entitled to one representative six tenths of the time, 
 and 212 towns entitled to one representative every year, and 
 all the other towns and cities are entitled to more than one 
 representative each year. 
 
 The first objection to this system is the absurdity of dis- 
 franchising the inhabitants of the small towns a part of the 
 time, and compensating them for this wrong by allowing 
 them an over-representation the rest of the time. This 
 scheme, in doing injustice to the small towns a part of the 
 time, does an injury to the larger ones all the time. 
 
 Another objection to this scheme is, that it violates the 
 principle of equality, in this class of towns, by giving each 
 of them the same representation, without any regard to their 
 population. The 994 citizens of Boxford have just the same 
 representative weight that the 210 citizens of New Ashford 
 or the 242 citizens of Monroe have. Thus one man in either 
 of the latter towns has more power in the House of Repre- 
 sentatives than four men in the former town. And the in- 
 equality, in a greater or less degree, runs through the whole of 
 this class of towns. Is this a just and righteous distribution 
 of power ? And will you give it your approbation ? 
 
 Again, the same inequality runs through the second class 
 of towns. We find one town, Hingham, with 3,962 inhabit- 
 ants, having one representative, and another town, Chester- 
 field, with 1,009 inhabitants having the same. Is this repre- 
 sentation " founded upon the principles of equality " ? 
 
 But, fellow-citizens, there are several other views of this 
 subject which will present it in a more striking light. And I 
 now bespeak your largest patience and forbearance, for I am 
 determined, at the risk of being tedious, to follow out this pro- 
 vision in most of its details, and to show its unrighteous, 
 arbitrary, and anti-democratic character. 
 
 I will, in the first place, make a comparison between several 
 different towns, to show the inequality between them. This 
 will be the best test of the fairness arid justice of the scheme.
 
 214 INEQUALITY, INJUSTICE. 
 
 For every representative ought to represent as near as prac- 
 ticable the same number of people. And every representa- 
 tive district should have a representative power as near as 
 practicable according to its population. I will now refer you 
 to the population of several towns, with their representation, 
 and show you how utterly this justice is disregarded and set 
 at naught. 
 
 In the comparison which I am about to institute, I intend 
 to take strong cases, because that will best test the principle. 
 And I shall not notice the fractional representation of the 
 small towns, because, until a new census be taken, they 
 will be entitled to annual representation, and because, when a 
 new census shall be taken, it will show almost all the increase 
 in the large corporations, which will make the inequality 
 greater then than it is now, allowing the annual representation 
 of the small towns. 
 
 I will commence by comparing some of the towns in this 
 vicinity with some in the northwestern part of the State. 
 Pawtucket with 3,876 inhabitants has one representative, and 
 New Ashford with 210 and Monroe with 242 each has one. 
 Thus a citizen of New Ashford has in the House of Repre- 
 sentatives as much power as 18 citizens of Pawtucket, and 
 a citizen of Monroe has as much as 16 citizens of Pawtucket. 
 Follow the comparison a little further. There are ten towns 
 in the State which have a population of 3,685 souls, and are 
 entitled to 10 representatives, while Pawtucket with its popu- 
 lation of 3,876 has but one. Is this equality or justice ? 
 
 There are other towns of this class, for instance, Hingham, 
 North Bridgewater, Rochester, &c., where the disproportion 
 is even greater than in Pawtucket, and in all of the 212 
 towns the inequality is gross, as between themselves, as well 
 as between them and the smaller towns. But time will not 
 permit a reference to a hundredth part of them. 
 
 Let us for a moment look at the larger class of towns. A 
 man in Fall River has one eighteenth part of the political 
 power of a man in New Ashford, and one sixteenth of the 
 power of a man in Monroe. The population of Fall River is 
 11,170, and is entitled to three representatives. There are 
 twenty-three towns in other parts of the State, with a popula-
 
 ONE SIXTEENTH OF A MAN. 215 
 
 tion of 11,308, which are entitled to twenty-three representatives. 
 So a citizen of New Bedford has one sixteenth of the weight 
 of a citizen of New Ashford, and one fourteenth the weight of 
 a citizen of Monroe. Thirty towns, with a population of 
 16,292 are entitled to thirty representatives, while New Bed- 
 ford, with 16,441 inhabitants, has onlyy?<;e representatives. 
 
 Now let us bring this matter home to our own town, and 
 see how we are estimated in the scale of political rights. 
 Following the same comparison, a man in Taunton has one 
 sixteenth the weight of a man in New Ashford, and one four- 
 teenth the weight of a man in Monroe. From this it follows, 
 either that each of us is only one sixteenth or one fourteenth 
 of a man, or that every inhabitant of either of these favored 
 towns is fourteen or sixteen times a man. Again, Taunton 
 has a population of 10,145, and is entitled to three representa- 
 tives, and twenty-one other towns with 10,015 inhabitants are 
 entitled to twenty-one representatives. 
 
 Fellow-townsmen, can you approve a system like this ? Is 
 any one of you willing to admit that he is but one sixteenth or 
 one fourteenth or one tenth of a man ? Are the farmers, the 
 brickmakers, the mechanics, the machinists of Taunton, so 
 vastly inferior to the farmers of the Green Mountains, or of 
 any other part of the world ? What is there in any other part 
 of the Constitution deemed so valuable by you, that you are 
 willing to purchase it by such an act of self-degradation and 
 political debasement ? When this system of inequality and 
 unrighteousness is brought home to ourselves, it is difficult to 
 discuss it with becoming deliberation and calmness. Let me 
 put the question to you, Is there a person here, a person 
 in town, craven enough to acknowledge himself but the frac- 
 tion of a man by voting for these amendments ? 
 
 The proper test of the fairness of a representative system is 
 the comparison of one election district with others, and thus 
 ascertaining whether all are treated alike. If they are, the 
 system is a just one ; if not, it is an unjust one. We have 
 just seen how the proposed system bears this test, how 
 utterly it is condemned by it. But let us look further, and 
 see if we can find any alleviation of this evil. If, for in- 
 stance, the representatives are pretty fairly distributed among
 
 216 COUNTIES, SECTIONS, INTERESTS. 
 
 the different counties, sections, and interests of the State, it 
 will be some mitigation of the injustice of unequal districts. 
 
 How is the distribution between the several counties? 
 Norfolk, with a population of 77,441, can elect thirty-one rep- 
 resentatives. Berkshire, with 48,937, less than two thirds 
 the number, can elect thirty-three representatives. Barn- 
 stable, with 33,997 inhabitants, may elect fifteen representa- 
 tives, and Hampshire, with 34,290 inhabitants, may elect 
 twenty-four, almost twice as many. Bristol, with 74,979, can 
 elect thirty representatives, and Franklin, with 30,888, a little 
 over one third as many, can elect twenty-six representatives. 
 We need not further follow the county comparison to see that 
 no relief can be derived from that source. 
 
 Let us now see how the system operates upon the different 
 sections of the State. The three northwestern counties, with 
 a population of 114,115, may elect 83 representatives, while 
 Norfolk and Bristol, with 154,121, can elect only 61, and 
 Norfolk, Bristol, and Barnstable, with 188,118 inhabitants, 
 can elect only 76. The Old Colony, with 176,680 inhabit- 
 ants, may elect 76 representatives, while the three northwest- 
 ern counties, with a population of 114,115, can elect 83. 
 
 I will present one or two other statistical views, and then 
 relieve your patience on this part of the subject. The county 
 of Norfolk, as I have stated, has 77,441 inhabitants, and 31 
 representatives. There are in other parts of the State 96 
 towns having 74,812 inhabitants and 96 representatives, 
 over three times as many as Norfolk. Again, Bristol, with 
 74,979 inhabitants, has but 30 representatives, while the be- 
 fore-mentioned 96 towns, with a less population, have 96, 
 more than three times as many. These 96 towns with 96 
 representatives have, as before stated, 74,812 inhabitants, and 
 the three counties of Norfolk, Bristol, and Barnstable, with 
 188,118 inhabitants, have but 76 representatives. 
 
 There is one other aspect in which I wish to present this sub- 
 ject. It is highly important that the several great interests of the 
 Commonwealth, as well as the people thereof, should be fairly 
 represented. The scheme proposed necessarily gives the ma- 
 jority to the small towns. No increase of population, according 
 to this ratio of representation, can ever change the majority.
 
 MINORITY TO GOVERN. 217 
 
 The small towns are, and always must be, agricultural. 
 Hence a majority always must represent agriculture. While 
 I am willing to make this the favored interest, and give it a 
 predominating influence, I am not willing to give the absolute 
 power to any one class. Although this class might never com- 
 bine against other classes, yet the sympathy of interest would 
 always bring their votes together when that interest was in- 
 volved. No! let the whole people, including farmers, merchants, 
 navigators, manufacturers, mechanics, and laborers of every 
 description, be represented according to numbers, and then 
 every interest and pursuit will be duly cared for and protected. 
 
 I have already adverted to the extraordinary influence 
 which a great mountain appears to exert over subjects which 
 would seem to have no connection with mountains or rocks 
 or tunnels, and I will now barely refer to a most wonderful 
 coincidence. We have spoken of the extraordinary declara- 
 tion, that, if any amendment was adopted unfavorable to the 
 Hoosac Tunnel, the whole Constitution should be defeated, 
 thus making that enterprise of more importance than any 
 amendment which can be proposed. And in connection with 
 this we have the fact that representation of the section inter- 
 ested in this project is double the representation of other sec- 
 tions of the State. I will offer no comments on a coinci- 
 dence so remarkable ; but leave it for the meditation of the 
 curious in such subjects. 
 
 There is no limit to the illustration of the unfairness and 
 absurdity of this scheme of representation. But I am sure 
 that I have gone far enough to satisfy you that, in all its re- 
 lations, whether to town, county, sections, or interests, it is 
 monstrously unequal, unrighteous, and dangerous. It reverses 
 the fundamental principles of free government, by giving to a 
 small minority the controlling power. By this scheme THREE 
 TENTHS of the people elect a majority of the House of Repre- 
 sentatives. And less than one half of the people can elect two 
 thirds of the House. Is there any safety for the liberty, the 
 personal rights, or the property of the majority, when so small 
 a minority can govern? Is there any guaranty that your Con- 
 stitution will not be made worse, when a bare majority, and 
 even less, in some stages, may propose amendments ? 
 20
 
 218 NUMBER OF REPRESENTATIVES. 
 
 Another insurmountable objection to this is, that it makes 
 a House altogether too large for the intelligent and deliberate 
 transaction of the public business. The people everywhere 
 demanded a diminution of the House ; but the Convention, 
 in defiance of their wishes, increased it. Such a multitudi- 
 nous assembly necessarily falls under the influence of ambi- 
 tious and aspiring, if not unscrupulous men, and becomes a 
 piece of machinery controlled by party leaders ; and questions, 
 too often, instead of being decided in the Capitol, are settled in 
 caucuses. The great and growing State of New York, with its 
 three millions of inhabitants and its imperial territory, has but 
 one hundred and twenty-eight members of the Assembly. The 
 great States of Pennsylvania and Ohio, with their two mil- 
 lions each, and their extensive territories, have but one hun- 
 dred in the lower House. And the State of Tennessee, with 
 as many inhabitants and six times as much territory as we 
 have, has but seventy-five representatives. Why should we 
 employ four or five times as many agents to transact our 
 business as these great States employ ? I am in favor of a 
 pretty full representation of the people; but having regard to 
 the size of our territory and our present and probable future 
 population, in my opinion one hundred and twenty, or at most 
 a hundred and fifty members, would compose a better House 
 than any larger number. 
 
 Another strong objection to this scheme is its tendency to 
 increase the number of the House, already much too large. 
 The number will be increased by the multiplication of towns. 
 Although the introduction of the absurd and arbitrary rule 
 that new towns of less than fifteen hundred inhabitants shall 
 not be allowed any representative, may discourage and retard 
 the formation of new towns, it will not prevent it. New 
 towns will sometimes be formed with more than fifteen hun- 
 dred inhabitants, and old towns will be left with a very small 
 number ; and both will be represented. The principal in- 
 crease of population will be in the large towns. The ratio of 
 representation is to be founded on the ratio of increase in the 
 whole Stale, so that, while it greatly increases the inequality 
 of representation, it will also somewhat increase the number 
 of members. This intricate and mysterious rule, fruitful only
 
 PERPETUITY OF THE EVIL. L 219 
 
 of evil, possesses the peculiar power of disfranchising a part of 
 the people ; of increasing the number of representatives ; and 
 of rendering the apportionment more unequal and unjust. 
 
 I must add, that this rule possesses a further extraordi- 
 nary property. It has the power of perpetuating and rendering 
 irremediable the evil which it creates. If you adopt this sys- 
 tem, and place the power in the hands of a small minority, you 
 must never expect them to give it up. This would be contrary 
 to all experience and the principles of human nature. Who 
 ever knew the few holding power voluntarily to surrender it 
 to the many? The history of the very amendment we are 
 now considering furnishes a strong illustration of this prin- 
 ciple. 
 
 Various propositions were submitted in the Convention to 
 divide the State into districts, and to reduce the representation 
 and make it as equal as practicable. These were all rejected 
 by large majorities, and the present system was adopted by a 
 very large majority. But how were these majorities com- 
 posed ? Did the popular majority declare against these propo- 
 sitions ? By no means. They were rejected by those who, 
 having an undue share of power, were determined to increase 
 it, at the expense of those who already had less than they 
 were entitled to. I did not make the calculation, and do not 
 speak from personal knowledge. But a gentleman in whose 
 accuracy I have entire confidence made the calculation, and 
 found that, although the majority in the Convention was 
 nearly one hundred, yet that those who voted for the equal 
 representation by districts represented 421,000, while the great 
 majority represented only 386,000. Thus the rule that the 
 minority holding the power will never give it up, aided by 
 party tactics, triumphed over the will of the people. 
 
 Will you excuse a little more detail on this subject? My 
 first motion was to establish the number which should com- 
 pose the House ; apportion this number among the several 
 counties as near as possible (without dividing towns and the 
 wards of cities), according to population, or ratable polls, or 
 legal voters, as might be preferred ; and then let each county 
 be subdivided into districts for one, two, or three members, so 
 as to let each member represent as nearly as practicable an
 
 220 FUTURE REVISIONS. 
 
 equal number. This was rejected. And then I offered a 
 proposition to submit to the people, when they voted on the 
 adoption of the Constitution, the question whether they would 
 accept the above proposition or the town representation as 
 proposed in the amended Constitution. I thought the right 
 to settle this question belonged to the people, and that nothing 
 could be fairer than to leave the matter directly to them. But 
 this was objected to. And it was declared in debate by a 
 leading delegate, that, if this was left to the people, " they 
 would go with a hurrah for the district system" ; and thereupon 
 it was thought necessary to put it aside indirectly, instead of 
 taking a direct vote upon it. A motion was accordingly made 
 to substitute another plan for districting, which would be in 
 no danger of being adopted either with or without a " hurrah." 
 I thought I had reason to complain of the course adopted in 
 refusing a direct vote on my motion ; but I shall say nothing 
 of that, as I have not come here to seek redress of personal 
 grievances. The substitute was adopted instead of my plan, 
 and now forms a part of the proposed Constitution. 
 
 By this, which is the 4th article of the 14th chapter, the Leg- 
 islature in 1856 is required to divide the State into single or 
 double equal districts for the choice of representatives. When 
 it is recollected that the duty of forming these districts is de- 
 volved upon a Legislature, a large majority of whom will be 
 from small towns, and utterly opposed to the whole district 
 system, and that it will be in accordance with their interests, 
 as well as their opinions, to defeat the whole scheme, it can 
 hardly be doubted that they will either make such hideous 
 districts that the people will be obliged to reject them, or that, 
 through a disagreement between the two branches, they will 
 fail to make any districts at all. In this way this substitute, 
 having answered its main purpose by defeating my motion, 
 will befunctus officio. 
 
 In this connection it will be proper to advert to the provis- 
 ion for future revisions of the Constitution. All Conventions 
 hereafter to be called are to be founded upon the same un- 
 righteous rule as the House of Representatives, with the addi- 
 tional evil of allowing non-resident representation. Should 
 this Constitution be adopted, what hope will remain for any
 
 PARTY DISCIPLINE. 221 
 
 improvement in it hereafter? Fellow-citizens, will you submit 
 to such imposition and self-degradation ? Now is the time to 
 resist. Will you hold out your hands to have the fetters well 
 riveted ? Or will you spurn the chains before the rivets are 
 clenched ? 
 
 I have now presented to your consideration such of the 
 acts done by the Convention as my time and strength have 
 enabled me to do; and you will judge whether they are wor- 
 thy of your adoption, or whether they are such as ought to 
 condemn the whole proceedings of that body. 
 
 But if the objections which I have stated have any foun- 
 dation, how do the advocates expect to procure the adoption 
 of the amendments ? Their principal reliance must be upon * 
 party discipline, and the weight of the recommendation of the 
 Convention. They also may well rely upon their eloquence 
 and arts of persuasion. But, let us for a moment look at a 
 few of the arguments which are advanced. 
 
 I believe all of the advocates admit that some of the articles 
 are objectionable to some people, but, say they, you must 
 adopt the whole now, or you will never get any amendments, 
 for the people will never call another Convention. Are they 
 aware what is the admission necessarily implied by this ? 
 Why will the people never call another Convention ? Will 
 they not continue to have the same power ? There can then 
 be no other reason for their refusal, than that the people are 
 so disgusted and dissatisfied with the action of this Conven- 
 tion, that they will never trust another. 
 
 They also say, that all admit that some of the provisions 
 are good and beneficial, and, in order to secure these, they 
 must vote for the whole, including the bad as well as the good ; 
 for they are all put together in one proposition, and you can- 
 not obtain what you like unless you take what you dislike. 
 But who put them together ? Did not their advocates con- 
 nect them for the very purpose of having this argument to 
 urge? 
 
 Again, they say the old Constitution is very defective and 
 
 imperfect, and the only way to remedy this is to adopt the 
 
 new one. We admit the defects of the old Constitution, and 
 
 we once thought no rational men would ever make another 
 
 20*
 
 222 TOWN ORGANIZATIONS. 
 
 equally defective. But in this we have found ourselves mis- 
 taken, for the new Constitution is really much worse than the 
 old one ; and to take it in order to get rid of the latter, would be 
 to adopt a great evil that we might escape from a smaller one. 
 There being no justification of unequal representation, the 
 accommodation of the scheme proposed, which its advocates 
 mainly rely upon, is founded upon our system of town organ- 
 ization. They extol this system as being invaluable. I 
 fully agree to the soundness of their views on this point. But 
 the defect of their argument is, that the inference has no con- 
 nection with the premises. Indeed, the opposite conclusion 
 seems to be the more natural one. 
 
 The value and importance of our municipal system are fully 
 appreciated. Our towns are indeed little democracies. Town- 
 meetings are primeval legislative bodies, possessing, within 
 their proper spheres, powers, upon the wise exercise of which, 
 in a high degree, depend the well-being and happiness of the 
 citizens. In these assemblies are considered and discussed 
 such subjects as the laying out, making, and repairing of high- 
 ways, the financial affairs, the support and employment of 
 paupers, the maintenance of public schools and the forma- 
 tion of districts for that purpose, the enacting of by-laws and 
 the management of the police, and the management of the 
 general affairs of the town, and the adoption of petitions, 
 remonstrances, and approbatory and denunciatory resolutions 1 , 
 and many other matters of deep interest to the inhabitants. 
 These topics engage the attention of the citizens, and open 
 for investigation and discussion, not only local affairs and 
 municipal regulations, but the science of government and 
 the whole range of politics. In the investigation, discussion, 
 and disposition of these subjects consist the excellence and 
 advantage of these democratic schools. But is there any 
 thing in the election of one or more representatives, which 
 adds in the slightest degree to their utility ? Will not the 
 voting for a representative of a district be just as instructive 
 and beneficial, as voting for a representative of a town ? Will 
 not the act, and the effect of the act upon the actors, be pre- 
 cisely the same in both cases ? 
 
 But the effect of the instruction and political teachings will
 
 PARTISANSHIP. 223 
 
 be entirely different. The whole training and practice under 
 our beautiful municipal systems teaches a reliance upon man, 
 and not his accidents, the perfect equality of all mankind, 
 and thus prepares the mind for equal representation. There- 
 fore the proposed system violates the first and fundamental 
 principles taught and practised in our municipal democracies. 
 
 Our parishes and school districts are invaluable ingredients 
 in the formation of our beautiful scheme of free government. 
 And the choice of a representative by each of these corpora- 
 tions might just as well be insisted upon as a choice by towns. 
 
 Probably the most anti-democratic absurdity into which 
 this unjust scheme has driven its advocates is the representa- 
 tion of corporations. Unable to find any other sufficient ba- ' 
 sis for so unequal a system, they are compelled to rest on cor- 
 porations for that portion which the population will not sus- 
 tain. If any one thing is less entitled, and more unfit, to be 
 represented than any other, it is that anomalous, bodiless, soul- 
 less, irresponsible, everlasting legal entity, called a corporation. 
 It has no principle to sustain it, and no precedent to excuse it, 
 except in the British Parliament. And even there the rotten- 
 borough system, which we propose to imitate, became so ab- 
 horrent to the political light of the present day, that they were 
 constrained to exscind its most prominent enormities. 
 
 It now only remains for me to ask your attention to the 
 manner in which the proposed amendments were prepared 
 and presented to the people. 
 
 In the first place, does the review which we have just taken 
 show that enlightened patriotism, or short-sighted partisanship, 
 broad statesmanship, or narrow party tactics, the love of 
 democratic equality, or the love of political spoils, in short, 
 that principle, or expediency, were the more prominent consid- 
 erations in the proceedings of the Convention ? The people 
 will judge, and by their votes on Monday next determine. 
 If the result was the dictate of disinterested love of country, 
 you should give it a favorable consideration ; if of party, the 
 presumption is that it is wrong and should be spurned, if for 
 no other reason, to rebuke the admission of that fell spirit in- 
 to such a body.
 
 224 AMENDMENTS IN A MASS. 
 
 The majority of the Convention professed to be democratic 
 reformers. But if we judge of them by their acts, we shall be 
 led to the conclusion, that a distrust of the intelligence of the 
 people or a dread of the popular power influenced many of 
 their decisions. When it was proposed to leave it to the 
 people to decide whether they would adopt the plurality rule, 
 they were denied the power. When those democratic meas- 
 ures, the secret ballot and universal suffrage, were passed, the 
 people were not allowed the full benefit of them, but were 
 limited in the application of them, just as you would 
 guard children against the too free use of edged tools and 
 fire-arms. And when an attempt was made to retain in 
 the hands of the people the power to loan the credit of the 
 State, the attempt was resisted and defeated on the avowed 
 ground, that the people were not competent to exercise the 
 powers, not capable of taking care of their own money and 
 their own credit ! What sort of reform, what sort of progress, 
 what sort of democracy, is this ? I was always taught, that 
 faith in the people was the criterion of democracy. 
 
 But the crowning act of the Convention, the measure which 
 shows at once their distrust of the intelligence of the people 
 and their disregard and contempt of their will, was the mode 
 of submitting the amendments to the action of the people. 
 Everybody everywhere supposed that there was but one way 
 in which these could properly be submitted. That was, that 
 each independent proposition should be presented by itself, so 
 that every elector should have perfect freedom in voting up- 
 on it. Even the members of the Convention, until near the 
 close of the session, were as strong and as well united in this 
 opinion as the people themselves. They well knew that they 
 were elected to amend, and not to make, a Constitution. No 
 action was had on the subject, no instructions were given 
 to any committee, in relation to the manner in which the 
 amendments agreed upon should be presented to the people 
 for their action. But just before the close of the session, the 
 committee appointed to put the amendments into the form 
 in which they were to be submitted, assumed authority also 
 to recommend the manner of their submission, and accord- 
 ingly reported a resolve, which presented nearly all the amend-
 
 AMENDMENTS SEPARATE. 225 
 
 ments, including all the most important ones, in one proposi- 
 tion, and doled out six or seven minor propositions for 
 the separate action of the people. By some secret charm 
 or talismanic influence, the great majority of the Con- 
 vention were converted from their former notions, and the 
 plan was adopted by an overwhelming vote. But so strong 
 was the conviction of the unfairness and injustice of the meas- 
 ure, that, since its passage, no one seems to covet the pater- 
 nity of it, and boldly and manfully to defend and justify it. 
 
 One of the prominent advocates of the new Constitution, 
 whose speech in Faneuil Hall was published in the Boston 
 Post, is reported to have said, on this point, that he " should 
 have been glad to have seen some things submitted separately, 
 and tried to bring about that result" I cannot question the 
 gentleman's sincerity, for he made a speech in the Convention 
 in favor of a separate submission. But he was on the com- 
 mittee who reported the plan which was accepted, and under 
 which we are now acting ; and although party spirit and 
 party discipline sometimes make strange work with our men- 
 tal and moral powers, I think he cannot have forgotten the 
 proceedings of the committee. The plan, precisely as it now 
 stands, including every article of the first proposition, with- 
 out the change of a word or a letter, was adopted in the 
 committee by a vote of seven to six, the gentleman himself 
 voting in the affirmative.* I do not doubt that this gentle- 
 man, and other members of the committee, and many other 
 members of the Convention, who by some influence or con- 
 siderations satisfactory to their own minds were induced to 
 vote for the plan, would sincerely and truly " have been glad 
 to have seen some things submitted separately." 
 
 But let us look a little into this plan. Why were all the 
 
 * This the Hon. B. F. Hallett, in one at least of his many speeches, pronounced, 
 in language selected by his own taste, " a base falsehood." It was well known in 
 the Convention how the committee divided on this report. Those who were in 
 favor of it were Boutwell, Allen, Grisirold, Dana, Abbott, Know/ton, and HALLETT. 
 Those who were opposed to it were Morton, Choate, Parker, Briygs, Lord, and Oli- 
 ver. That the last six were opposed to the report is perfectly well known, and 
 may be verified by inquiry of them. If Mr. Hallett was not in favor of it, then it 
 never was adopted by a majority.
 
 226 PARTY ARTIFICE. 
 
 important amendments grouped together, and only some 
 minor ones submitted separately ? Why not submit them 
 all together, or all separately ? There must be some powerful 
 reason for this extraordinary distinction. Can it be that the 
 Convention desired and intended to resort to an artifice to 
 get the people to make a show of approving what they in 
 their hearts disapproved, and to give a legal assent to an 
 amendment which they secretly detested? Is it possible that 
 Democrats, nay, that those who pretend to be more than Dem- 
 ocrats, to be " Free Democrats," or "Democratic Democrats," 
 can desire to get any constitutional provision legally adopted 
 without and against the wishes of a majority of the people ? 
 If that be " Free Democracy," I say give us the article in its 
 pristine purity. How did it happen that all the amendments 
 supposed to be popular were united with the representative 
 scheme, and all of doubtful popularity were submitted sepa- 
 rately ? Was that so repugnant to the opinions and wishes 
 of the people, that it required every Ihing of good that the 
 Convention did, to induce the people to swallow it ? I fear 
 there can be but one answer to this question. The veil is too 
 thin to conceal the object. It must have been to constrain 
 the people, nolens volens, to vote for this scheme. Some of 
 the members had the candor to avow this. Well may we 
 say, in the language which one of the committee used on 
 another occasion, " You need not attempt to disguise it. 
 Everybody will see through it. The lion's skin is not half 
 big enough to cover that other, animal. His ears stick out, in 
 all their longitude." 
 
 But again, does not this mode of submission necessarily 
 operate as a restraint upon the freedom of the people ? A 
 man may like some of the many things which are combined, 
 and dislike others. He is necessarily compelled, either to vote 
 for what he dislikes, or against what he likes. It operates 
 not only as a threat, but also as a bribe. It virtually declares 
 that, if you will not vote for this thing which you do not want, 
 you shall not have another thing which you do want, or it 
 holds out the corrupting inducement, that you may have what 
 you think is right, if you will take with it what you believe to 
 be wrong: It is the Jesuit's rule, that the end justifies the
 
 JESUITISM, PARTY. 227 
 
 means. Do wrong" that "good may come from it. Spurn 
 such a rule. Do what is rig-lit and just in itself, and leave the 
 event to Providence. Such a course is always expedient, as 
 well as righteous. A wrong to one individual can never be 
 justified by any amount of benefit to others. If there is one 
 unrighteous provision in this general proposition, nothing can 
 justify a vote in favor of it, however wise and just in every 
 thing else it may be. The responsibility rests on those who 
 made the unjust connection. 
 
 I will, in conclusion on this point, say, that the representa- 
 tive has no right to restrain the free action of his constituent; 
 the agent has no power to give orders to his principal ; nor 
 the servant to dictate to his master. I cannot express my 
 abhorrence of this scheme better, than by repeating what I 
 said of it in the Convention. I there said that it was like 
 those having authority declaring to the religious man, You 
 may have a church if you will place a gambling-house by 
 the side of it ; or to the friend of education, You may have a 
 female seminary, if you will place a house of assignation 
 next to it ; but they are so connected, that you cannot have 
 the one without the other. I said I would let the church and 
 the school go, before I would take them at such a sacrifice. 
 I would not be hired, by any price, to do an unjust act. And 
 I hope the people will now join me in saying, that the Con- 
 vention, by what they have neglected to do, by what they 
 actually have done, and by the manner in which they have 
 done it, have forfeited their respect and confidence, and in- 
 curred their deepest disapprobation of all their proceedings. 
 
 I have now adverted to nearly all the matters which I in- 
 tended to discuss. I am aware that there are many other 
 things worthy of deep consideration. But I must leave them 
 to be suggested by your own reflections. Enough has been 
 said to show pretty fully the working and bearing of all the 
 proposed amendments, and the nature and character of the 
 proceedings of the Convention. You have seen that it was 
 conceived by party, was planned by party, was proposed 
 by party, was sustained by party, was carried through by 
 party, was conducted in all its operations by party, and
 
 228 DEMOCRATIC PRINCIPLES. 
 
 that its proceedings were of a party character ; and -that, if the 
 amendments are adopted, it will be by a party vote. Are you, 
 fellow-citizens, willing to have a PARTY CONSTITUTION ? 
 
 And what is the political character of the party who have 
 controlled the action of the Convention ? While they claim 
 to be .Democrats and something more, have not the measures 
 which they have proposed shown them to be devoid of the 
 feelings and principles of a true Democracy ? And have not 
 their own declarations sustained and confirmed the same 
 thing? Scarcely had the Convention commenced its session, 
 when he who was an acknowledged leader in that body, who 
 has since, by the united votes of the Liberty party, been rec- 
 ognized as the true representative of their principles, declared 
 "that the power of the Convention had no limit but its own 
 will" Is this the Democratic rule of construing delegated 
 power ? It would better suit the latitude of Russia or Aus- 
 tria, than the genial climate of a free country. -And another 
 distinguished member of the same party, alike honorable for 
 talents, learning, sincerity, and frankness, in discussing the 
 basis of representation, declared of a portion of our population, 
 that we ''-might as well count the cattle in the farmer 's field, or 
 the crows that fly over it"; thus comparing this very numer- 
 ous class, not merely to the beasts of the field and to the birds 
 of the air, but to that filthy, mischievous, thievish, carrion 
 bird, the crow, the disgust and abhorrence of the farmer. 
 If these distinguished leaders speak the sentiments of the 
 Free Soil party, (and who has a better right to speak for 
 them ?) we may judge what they mean by the " equal rights of 
 man," and "the sodality of the human family"; and under- 
 stand them when they speak of" Free Democracy," and de- 
 nominate any one a " Democratic Democrat." 
 
 I declared in the commencement of my remarks, that I 
 came before you as a Democrat, and I should discuss the pro- 
 posed amendments on Democratic principles. Have I redeemed 
 my pledge ? I should, however, be glad, were there not so 
 many Whigs present, to address a few remarks specially to 
 my Democratic friends. And as it is, I believe I will let 
 them. out. They may not be entirely lost upon the Whigs.
 
 THE DEMOCRATIC PARTY. 229 
 
 Fellow-Democrats, the line of our party was formerly pretty 
 plainly drawn and distinctly marked. The landmarks were 
 principles, and these stood out so distinctively, that we had 
 no fear of mistaking our own boundaries, or allowing others 
 to come within them. There was then no disposition to 
 tear down our partition wall, and occupy our fields in com- 
 mon with adjoining owners. We feared that the cross of 
 blood which would ensue would greatly deteriorate our stock, 
 and the intercourse would render both vicious. But, of late, 
 we have had so many platforms made, and so many defective 
 planks put in them, and the planks have so often been 
 changed, that we hardly know where we stand, or when we 
 safely stand. 
 
 My advice is, that we eschew all modern inventions, and 
 stick to the original platform as first laid down by our fathers of 
 the Revolution, the authors of the Declaration of Independence, 
 and the framers of our Constitution, as it was trodden by Jef- 
 ferson, and Madison, and Jackson. Every stick of the old 
 platform is perfectly sound, without a flaw or the slightest 
 indication of decay. .As long as we firmly stand on this, no 
 harm can come to us. Be careful not to be led away by 
 collateral matters. Do not be diverted by any side issues. 
 Be not tempted to mount any inviting hobby that may be led 
 to your door. From these sources spring all our danger. 
 They have caused all our embarrassment in relation to our 
 extraordinary constitutional propositions. 
 
 But the recommendation of a strict adherence to the prin- 
 ciples of your party implies no illiberality, much less prejudice, 
 against any other party^ The rule which you prescribe to 
 yourselves, you will allow to others. The great questions for 
 which we have struggled so manfully against the Whigs have 
 been settled in our favor, and acquiesced in by them. The 
 distance between the two parties, formerly so wide, has 
 greatly diminished. As the Whig party has yiefded to us in 
 so many important points, let no remembrance of former hos- 
 tility, let no appeal to party prejudice, impel us to vote against 
 a measure merely because they are for it, nor deter us from 
 voting for what is right because they support it. 
 
 You know, gentlemen, that I have always been opposed to 
 21
 
 230 THE COALITION. 
 
 coalitions. All history shows that coalitions have always been 
 devoid of consistent common principles, and been short-lived 
 and productive of mischievous consequences. I have always 
 advised a union of all men who entertained the same princi- 
 ples, by whatever different names they may have been distin- 
 guished. But I have ever opposed a combination of parties 
 of different principles, for the purpose of gaining a political 
 triumph, or of distributing the honors and emoluments of office 
 and place among the contracting parties. I always believed 
 such coalitions to be unprincipled and dangerous. I would 
 say, let each man vote according to his own convictions, and 
 leave the principles of our government to work out the conse- 
 quences. Be assured that such, in the long run, will be pro- 
 ductive of the greatest good to the country, to yourselves, and 
 to every honest, well-principled party. 
 
 I am rejoiced that the National Administration has placed 
 itself so distinctly upon this old-fashioned Democratic ground. 
 I am rejoiced that the President has " set his face like a flint" 
 against these unholy coalitions, and especially against the 
 Coalition in this State ; and holds that " the Democrats who 
 have participated in this have done worse than to commit a 
 fatal error. They have abandoned a principle" Let us then 
 strictly adhere to the pure old Democratic faith, unalloyed by 
 the intermixture of any other tenets. Let us strictly adhere 
 to and faithfully execute the compromises of the Constitution, 
 neither enlarging nor diminishing them by a single hair's 
 breadth. 
 
 The constitutional amendments are, beyond all question, 
 the genuine production of the Massachusetts Coalition. If, 
 then, the support of the Coalition "is hostile, in the extremist 
 degree, to the determined policy of the Administration" will 
 not voting for the works of the Coalition be either " right- 
 handed backsliding " or " left-handed defection " ? And let 
 me appeal to my Democratic friends and my Free Soil friends, 
 if any such there be who voted for General Pierce, or intend 
 to sustain his Administration, how can they vote for this Con- 
 stitution, consistently with their support of the present Admin- 
 istration ? 
 
 Fellow-citizens, I now close my remarks, not because I
 
 DELIBERATE CONVICTIONS. 231 
 
 have not many more things to urge against this Constitution, 
 but because it is quite time that our deliberations should be 
 brought to an end. This is probably the last time that I shall 
 ever make a political address. I have been drawn out, against 
 my wishes and determination, by your call, and by the magni- 
 tude of the question before you. I have considered the subject 
 for a long time, and with great care and coolness. I have 
 honestly laid before you the result of my deliberations. I 
 claim no exemption from error or prejudice. But I may ap- 
 peal to you to say, whether there can be any motive which I 
 can have, except to sustain the honest convictions of my judg- 
 ment. All my affinities and predilections were with the pres- 
 ent advocates of the Constitution. 
 
 I regret that this address is not more worthy of the subject, 
 of the occasion, and of yourselves. I have only endeavored 
 to present plain facts and plain inferences in plain language. 
 I have made no attempt at ornament or literary display. The 
 beauties of rhetoric and the persuasion of eloquence I have 
 left to the advocates of the new Constitution. I think they 
 will need all their power. 
 
 For the facts which I have stated, I refer you to the public 
 documents. From them you may ascertain their accuracy. 
 The inferences which I have drawn, your own judgments will 
 enable you to test. The subject is immensely important. It 
 embraces principles, the effect of which will be felt for ages to 
 come. If the results are such as I have described them, the 
 Constitution proposed to you, if adopted, must be productive 
 of evil consequences, and very little else. At any rate, some 
 parts of it will inflict a great wrong on some portions of the 
 community. Let us not, then, fall into the fatal error of doing 
 wrong to some, especially to ourselves, in the hope that good 
 will accrue to others. In conclusion, I am constrained to say, 
 that I have come to the most unwavering conviction, that the 
 whole scheme is the fruit of party spirit, and is throughout 
 unequal, anti-democratic, and unrighteous, and therefore 
 ought to be rejected.
 
 ADDRESS 
 
 TO THE 
 
 CITIZENS OFQUINCY, 
 
 DELIVERED, AT THEIR INVITATION, 
 BT 
 
 HON. CHARLES FRANCIS ADAMS, 
 
 NOVEMBER 5, 1853. 
 FROM THE BOSTON DAILY ADVERTISER.
 
 ADDRESS OF MR. ADAMS. 
 
 MY FRIENDS AND NEIGHBORS, I have been requested to 
 express my views of the proposed amendments to the Consti- 
 tution, and I see no reason why I should refuse to do so. On 
 a subject like this, whilst I should not seek to obtrude my 
 sentiments upon others, I have nothing to conceal. Some of 
 you have applied to me without party distinction. On my 
 part, I meet you without party feeling. My topic will be the 
 Constitution, and nothing else. You commit yourselves to 
 nothing by simply listening to what I may say, whilst I de- 
 sire it to be clearly understood, that in no way do I depart 
 from the position I have heretofore held on other subjects, by 
 the course I deem it proper now to take. Here we are not 
 Whigs, or Democrats, or Free-Soilers, but simply citizens of 
 Massachusetts, assembled for the purpose of consulting upon 
 our interests under a government to be established for our 
 common good. 
 
 For the first time in the history of this Commonwealth, an 
 amended form of Constitution has been prepared and pre- 
 sented for adoption in the midst of party contentions. I hold 
 this to be the most unfortunate thing that could well have 
 happened, for it is entirely unfavorable to the exercise of that 
 calmness of judgment which is indispensable to the formation 
 of a wise decision upon the disputed points. For myself, I 
 can only say that I have tried very hard to judge the question 
 upon its own merits, and upon nothing else. I have looked 
 about me to see whom I could find to consult, and I scarcely 
 find a soul. On the one hand, I perceive the party in favor 
 of the Constitution acting not so much on its merits as
 
 236 DANGERS OF PARTY. 
 
 upon the idea that its provisions will aid them in all future 
 contests with their opponents ; and on the other, I see the 
 opposing party resisting it not so much on its demerits as from 
 a fear that it may impair their prospect of reestablishing their 
 ascendency. On all such calculations, my little experience 
 teaches me that no dependence whatever can in the long run 
 be placed ; and even were it otherwise, they should not be per- 
 mitted to enter into the question of the goodness or badness 
 of any form of government designed for the equal benefit of 
 all. In such a state of affairs, I have been driven to trust the 
 free and unbiased exercise of my own judgment. For the 
 results to which it was brought, I pretend to claim nothing 
 beyond the merit of calmness and of independence of all. ex- 
 trinsic considerations. 
 
 And first of all, let me specify the nature of our task. The 
 preamble to the Bill of Rights prefixed to the Constitution de- 
 clares that " the body politic is a social compact, by which the 
 whole people covenants with each citizen, and each citizen 
 with the whole people, that all shall be governed by certain 
 laws for the common good." Of course, then, each citizen 
 who enters into such a compact has the same natural rights 
 with every other, and, in giving up a part of them for the sake 
 of securing the protection afforded by government, he is not 
 required to surrender more than his neighbors, nor to acquire 
 a smaller share of benefit than they. The only rule to be 
 adopted in such a compact, then, is that of rights, as well as 
 obligations, perfectly equal. Without such a foundation, no 
 republican form of government can possibly be stable, because 
 no considerable portion of the people who live under it will 
 consent to suffer the grievous injustice of established inequal- 
 ity of rights a moment longer than they can help it. Any in- 
 strument constructed upon calculations of benefit gained by 
 some at the expense of others, will not last. I do not here as- 
 sume that any thing of the kind has happened in the present 
 case ; still less do I venture to impute any intention to bring 
 about such a result to a single person of those constituting the 
 majority of the Convention that proposes the amendments. All 
 I mean now to point out is the absolute and paramount duty of 
 us all, if we mean to consult the permanent good of the whole,
 
 ORGANIC LAW. ADMINISTRATION. 237 
 
 as well as of each individual in the Commonwealth, to raise 
 ourselves clearly above the atmosphere of party passions, 
 which always tends to make us more or less unjust to one 
 another, and to consider what is now offered for adoption 
 solely upon its own merit, as carrying out the principle of 
 equal rights to all. 
 
 And here let me say a word upon the difference between 
 the present question and the ordinary ones that spring up 
 among us. The first is a case of organic law. The last re- 
 late to matters of administration. By organic law I mean 
 that rule by which the society, of which we are all members, 
 is kept together, and without which we should all fly apart. 
 By administration I mean only the way by which the in- 
 terests of that society, after it has been created, are well or ill 
 managed. The two processes may be tolerably well illus- 
 trated by the example of a watch. The spring, and wheels, 
 and screws, and pins, and case, are all separate pieces, which 
 must be brought together, and fitted, each in its proper place, 
 before the machine of which they are compounded can be 
 called a watch. The process of composition may be called 
 the organic law. It can be properly done only by following 
 one rule, which is to make the parts produce a true measure 
 of time. And about the greater or less excellence of the work 
 there can be little room for opposition of sentiment, since 
 there can be but one test, and but one way of applying it. 
 But when once made, a very different set of persons may 
 come in and successively take possession of the watch, wind 
 it, and regulate it, and set it, and a great difference of opinion 
 may naturally spring up among them as to who can keep it 
 most exactly to show the passage of time. This is adminis- 
 tration. In the one case, parties cannot or ought not to exist. 
 In the other, they have a fair and legitimate field of exercise. 
 A very good watch may be very ill taken care of. Just so a 
 very good form of government may be very badly directed. 
 In such a case, the remedy is to change the possession into 
 more careful or competent hands. But a watch badly put 
 together, with an unsuitable spring, ill-fitted wheels, and in- 
 sufficient chains and screws, will never keep time, let the 
 fidelity of the possessors be as perfect as it may, or let them
 
 238 THE OLD CONSTITUTION. 
 
 be changed ever so often. Just so is it with an ill-constructed 
 government, which will never satisfy the people, let the man- 
 agers of it be as competent as they may. Hence it follows, 
 that the true wisdom consists in seeing that the thing is made 
 right at first ; and that no temporary passions or secondary 
 motives be permitted to slip into the construction of a work, 
 which, once in, cannot be again put out, and the action of 
 which may tend to bring the whole system into public odium 
 or contempt. 
 
 The Constitution of Massachusetts was adopted in the 
 midst of the Revolutionary war. It was based upon princi- 
 ples which have stood the test of time ; and its action proved 
 so satisfactory to the generation that established it, that fifteen 
 years afterwards, when a chance was left open for them to 
 change it, they refused to do so. Twenty-five years later, the 
 separation of the District of Maine rendered a modification of 
 form absolutely necessary, and a convention was assembled 
 to prepare it. That body proposed a few changes to the peo- 
 ple, and such as in no way impaired or conflicted with the 
 principles of the old instrument. Yet even of these, the ma- 
 jority adopted only a part, and rejected some of the most ma- 
 terial. They acted calmly, and under no heat or party pas- 
 sion. Since that time, other amendments have been adopted 
 upon the recommendation of the Legislature, and these must 
 be admitted to have done something to change the consis- 
 tency of the organic law. But we now have a much more 
 general and extensive alteration proposed to us. Neither is it 
 presented, as it was before, in parts that may be separated. 
 We must take them as a whole, or none. I refer to the first 
 and comprehensive proposition. The question here for us to 
 settle in our minds is, whether it is on the whole good enough 
 to justify us in voting for the entire change. 
 
 For my part, I have labored to regard the matter calmly in 
 all its parts. I perceive some things which are improvements ; 
 some which scarcely deserve the name ; some which appear 
 to me the direct opposite. On comparing them all together, 
 I have been reluctantly compelled to decide, that the ill over- 
 balances the good, and that, being obliged to act upon all to- 
 gether, it is wiser and more safe to wash my hands of the
 
 THE NEW CONSTITUTION. 239 
 
 whole by voting against it, thus losing the good, than by ac- 
 cepting it to run the risk of admitting with that good a more 
 than compensating evil. 
 
 Let me now state in brief my objections. 
 
 1. The first Constitution is a consistent whole. Its premises 
 and its conclusions agree as well as the nature of things will 
 admit. The details are legitimate deductions from the princi- 
 ples enunciated. There is neither incoherence nor inconsis- 
 tency in all its main elements. In other words, the watch 
 was well put together. I object to the substitute now pro- 
 posed, because the new parts are often inconsistent with the 
 old, and sometimes with one another. There is no ruling 
 idea presented by them, and least of all, that which has been 
 claimed, the idea of advance and progress. Nothing has been 
 perfected. No change proposed is effectively carried out; 
 some are left to be done hereafter by others, less likely to be 
 competent. 
 
 2. A total failure to apply any adequate remedy to that 
 particular evil which occasioned the calling of the Convention 
 at all. I allude to the inequality of the representation. If, in 
 the scales of a balance, three pounds are placed in one, and 
 one pound in the other, it will scarcely be considered as set- 
 ting them even to add four pounds to that which had one. 
 The only difference is, that the same excess of weight has been 
 shifted from one side to the other. 
 
 3. My third objection is, that certain evils are perpetuated 
 which ought to have been remedied by the Convention, and 
 which are more likely to be finally corrected by rejecting than 
 accepting the amendment. 
 
 It would take far more time than I have to spare, to enlarge 
 upon all these points in their order. I propose to confine 
 myself to one of them as my main topic, and to touch upon 
 others incidentally before I conclude. 
 
 I object to the Constitution because it contains in the 
 clauses respecting representation a gross practical contradic- 
 tion. Whilst in the premises it assumes to proceed on the 
 basis of equality, in the conclusion it establishes a greater 
 degree of inequality than ever. Let us look at the lan- 
 guage.
 
 240 CLAIM OF EQUALITY. 
 
 The first article in the third chapter of the proposed Consti- 
 tution reads thus : 
 
 " There shall be, in the Legislature of this Commonwealth, a repre- 
 sentation of the people, annually elected, and founded upon the prin- 
 ciple of equality." 
 
 You will all note the words "founded upon the principle of 
 equality" The second article gives the conclusion designed 
 to correspond to the premises : 
 
 " And in order to provide for a representation of the citizens of this 
 Commonwealth, founded upon the principle of equality, every corpo- 
 rate town, containing less than 1,000 inhabitants, may elect one repre- 
 sentative in the year when the valuation of estates shall be settled, and, 
 in addition thereto, one representative five years in every ten years. 
 Every town containing 1,000 inhabitants and less than 4,000, may 
 elect one representative. Evety town containing 4,000 inhabitants 
 and less than 8,000, may elect two representatives. Every town con- 
 taining 8,000 inhabitants and less than 12,000, may elect three repre- 
 sentatives. Every city or town containing 12,000 inhabitants, may 
 elect four representatives. Every city or town containing over 12,000 
 inhabitants, may elect one additional representative for every 4,000 
 inhabitants it shall contain over 12,000. Any two towns, each con- 
 taining less than 1,000 inhabitants, may, by consent of a majority of 
 the legal voters present at a legal meeting, in each of said towns 
 respectively, called for that purpose, form themselves into a represent- 
 ative district, to continue for the term of not less than two years ; and 
 such district shall have all the rights, in regard to representation, 
 which belong to a town having 1,000 inhabitants. And this appor- 
 tionment shall be based upon the census of the year 1850, until a new 
 census shall be taken." 
 
 Now I pray you to compare this claim of equality with 
 some of the statements I propose to submit of the practical 
 operation of the plan. 
 
 The town of Hull has a population of 262 souls, and it has 
 38 voters. It is allowed six representatives in ten years. 
 
 The town of Hingham, close alongside, has a population of 
 .3,962 souls, and it has 866 voters. It is allowed ten repre- 
 sentatives in ten years. 
 
 Every soul in Hull has a degree of political weight equal to 
 about lOf of the men, women, and children of Hingham.
 
 EQUALITY OF REPRESENTATION. 241 
 
 Every voter in Hull is equal to a little more than sixteen of 
 the voters of Hingham. 
 
 I respectfully ask every candid man whether this represen- 
 tation can fairly be said to be " founded upon the principle of 
 equality." 
 
 I have before me a list of ten towns, which is at the service 
 of any one disposed to examine it. The united population of 
 these towns is 3,926 souls. The number of voters in them is 
 850. These ten towns are allowed sixty representatives in 
 ten years. 
 
 The single town of Hingham has 3,962 souls, thirty-six more 
 than the sum of the ten towns. It has 866 voters, or thirteen 
 more voters than all the voters of the ten put together, and yet 
 Hingham is allowed only ten representatives in ten years. 
 
 Of course the proportionate weight of Hingham and of 
 these towns is about one to six. 
 
 Can this be called a representation " founded upon the prin- 
 ciple of equality " ? 
 
 The ten towns alluded to, having 3,926 souls and 853 voters, 
 are entitled to sixty representatives in ten years. 
 
 I have before me a list of six towns, at the service of any 
 one of this assembly, having 22,858 souls and 4,486 voters, 
 entitled to just the same number of representatives in ten 
 years, and no more. 
 
 The proportion here is one to nearly six. 
 
 I have not time to multiply instances which are under my 
 hand. What I furnish is decisive enough. And I respectful- 
 ly once more submit it to the good sense of every impartial 
 mind, whether a system showing any one of these results de- 
 serves to be designated as " founded upon the principle of 
 equality." Does not the conclusion in the second article 
 monstrously contradict the premises laid down in the first? 
 
 But this is not the only inconsistency. As if aware that 
 the plan proposed could not bear the test of time, the Con- 
 vention has appended to the close of its work a mode of get- 
 ting rid of it, in the year 1856. It directs the ordinary Legisla- 
 ture of that year to prepare a plan of district representation, to 
 be submitted to the people during that year, and, if approved 
 by them, to take the place of their own plan. I propose to 
 22
 
 INEQUALITY ADMITTED. 
 
 consider this hereafter. My purpose in introducing it here is 
 only to show the low estimate which they themselves put 
 upon their work, when they consent to see it swept out of ex- 
 istence in three years. If they had had any confidence in the 
 basis of their action, would not they have adhered to it more 
 firmly ? 
 
 But I do not understand that the gross inequality of this 
 plan is denied in any quarter. It is a waste of time to enlarge 
 upon it. In all of the intelligent and candid defence which 
 has fallen under my observation, I perceive two lines of argu- 
 ment, both predicated in an admission of the fact. 
 One of these is drawn up after this fashion: 
 " Yes, this system is unequal ; but then we wish you to notice how 
 very bad the old system is. At. any rate, this is an improvement upon 
 that, and we must consent to accept this, or we shall get nothing at all." 
 
 Now I perfectly understand the force of this argument, for 
 it has been too often addressed to my judgment heretofore for 
 me readily to mistake it. In the present instance I cannot 
 give it weight for two reasons. 
 
 The first is, that, since the Convention was called mainly 
 for the purpose of correcting a gross inequality complained of, 
 they should have corrected it, and not have attempted to in- 
 troduce a new inequality as a fit substitute for the old one. 
 This is not a performance of the promise. The Convention 
 was called to amend and to improve, and not merely to 
 change. And without going into the comparison of the one 
 system with the other, to show which is the least bad, it is 
 enough to say, once for all, that two bads do not make one 
 good, two wrongs can never make one right. 
 
 The second reason is, that there is no evidence going to 
 prove the fact which is assumed, that we cannot get any 
 improvement in other ways. I do not understand the reason 
 why the Legislature cannot at any time propose an amend- 
 ment, under the present Constitution, embracing all the ideas 
 suggested for the use of that body in 1856 by the Convention. 
 If the Legislature is after all to do the work that was cut out 
 for the Convention, I do not exactly see the reason why it 
 should have assembled at all. I know very well the objection 
 that will be made in some quarters. I know that it will be
 
 MASSACHUSETTS REPRESENTATION. 
 
 243 
 
 said the Legislature is hampered by the restriction requiring a 
 vote of two thirds of the members present, of two successive 
 Houses of Representatives, and that the opponents of every 
 change will always constitute a sufficient number to defeat it. 
 I will admit that this argument, and the conduct of one of the 
 parties in this Commonwealth in resisting all amendments in 
 the Legislature heretofore, had great weight with me in deciding 
 my vote for the Convention. I can only say, that if it should 
 be repeated, which I do not believe will be the case, I shall be 
 again disposed to advocate the calling of a new Convention. 
 There can be no doubt, in such case, that before a great while 
 such a Convention would be demanded. 
 
 In truth, the question of representation has been the great 
 stumbling-block in the government of Massachusetts for more 
 than a century; and it will continue to be until the people 
 begin to look a little deeper than they have ever yet done for 
 the cause of the evil. For myself I must say that I have 
 heretofore spent no little time and thought upon the subject ; 
 and I have come to some definite conclusions, which I may as 
 well submit to your consideration now, as at any time. In 
 order to do this clearly, it will be necessary to go a good way 
 back into the history of the past. 
 
 The representation of Massachusetts is clearly to be traced 
 back to the principle of borough representation in Great Brit- 
 ain, and the cause of our difficulties lies in the attempt which 
 has been constantly making to assimilate that principle 
 which has not worked well even under the monarchical and 
 aristocratic system of England, harboring, as it does, all sorts 
 of irregularity to the free institutions and acknowledged 
 equality of condition of the people of this Commonwealth. 
 There are many in America who have heard a great deal of 
 the rotten boroughs of the British Parliament, but who have 
 very little notion of their nature and origin. To them it may 
 be cause of surprise to learn, that the House of Commons was 
 originally made up of the representatives of the counties of 
 England, who formed its aristocracy ; and that when the 
 sovereign first sent out his writs to the boroughs, or, in other 
 words, the small towns containing the mass of the hard-work- 
 ing and industrious people, requiring each of them to send
 
 PLACES REPRESENTED, NOT PEOPLE. 
 
 two members to his Parliament, this was regarded as an ap- 
 peal to the popular feeling in order to protect him from the 
 aristocracy and to get more liberal grants of the people's 
 money. The inducement presented was the right of represen- 
 tation ; but so little was it felt as a privilege, that many of the 
 towns endeavored to avoid the distinction of a call. Some 
 actually succeeded in persuading the sheriffs not to include 
 them in their returns. And hence the first cause of inequal- 
 ity ; for by this act some places lost their representation alto- 
 gether. Even of those which preserved it, many regarded 
 themselves as liable to a burden, rather than enjoying a right. 
 They sent two representatives, it is true, but they were 
 obliged to pay them from their own resources. Even the two 
 shillings sterling paid per day to their members, when the 
 county members were allowed four, were considered as pay- 
 ing too high for having the borough's interests cared for by its 
 own members. Yet it was the representatives of these very 
 boroughs who first combined the elements of the popular fea- 
 tures of the British Constitution, and it was to them that our 
 ancestors, when they first came to these shores, were in the 
 habit of looking for the great nurseries of the principles which 
 drove them over here. It was still the popular feature of the 
 Constitution, although even then the natural changes going 
 on in the population of the respective towns were beginning 
 to produce the consequences of a later time. By reason of 
 attaching the right of representation to the place, and not to 
 those who lived in the place, in the course of years it turned 
 out that an old stone wall continued to be entitled to send 
 two members of Parliament, whilst seventy or eighty thou- 
 sand inhabitants, who had grown into a modern town, were 
 not entitled to one. This evil consequence, I say, followed 
 the mistake of attaching representation to a town, and not to 
 those who live in the town. 
 
 Our ancestors were, most of them, drawn from the middling 
 and poorer classes of the mother country who lived in towns. 
 When they came out to Massachusetts, they came under the 
 protection of a charter designed to create a commercial com- 
 pany, and not a political state. No provision was made in it 
 for any assemblies other than those of the members of the
 
 BOROUGH REPRESENTATION. 245 
 
 company, which, like the meetings of the famous East India 
 Company, were known as the meetings of the General Court, 
 in which they all had a right to participate. But after the 
 step was cnce taken of transferring the charter to Massachu- 
 setts, the sparse settlements, and the difficulty of getting from 
 place to place, soon rendered the assembling of all the mem- 
 bers to do the common business inconvenient, if not impracti- 
 cable. Hence sprung the idea of representation. No such 
 thing is mentioned in the charter ; but our ancestors, when 
 forced to entertain it, very naturally looked at home in Eng- 
 land for the precedents that were most familiar to them there, 
 and they consequently created a representation of towns. By 
 an act passed so early as 1636, 
 
 " It is ordered, That henceforth it shall be lawful for the freemen 
 of every town to choose (by papers) deputies for the General Court, 
 provided that no town shall send more than two deputies, and no town 
 that hath not to the number of twenty freemen shall send more than 
 one deputy, and such plantations as have not ten freemen shall send 
 none, but such freemen may vote with the next town, in the choice of 
 their deputies, till this Court take further order." 
 
 Here may be perceived the similarity to borough represen- 
 tation in England, as well in the distinction drawn between 
 the right attached to towns, as distinct from plantations which 
 had none, as in the limitation to two members and no more. 
 At the same time, the idea of the burden attached to the right 
 so far continued, as that in all towns, not having more than 
 thirty freemen, the matter of sending or not sending a deputy 
 was left optional with them. 
 
 The germ of town representation in this Commonwealth is 
 to be found in this law of 1636, and it is clearly wrapt up in 
 the kernel of borough representation in the mother country. 
 
 Time passed on ; the first charter was annulled by the 
 powers at home, and the new one granted by William and 
 Mary, in 1691, contained a clause directing the General Court 
 of the Province to consist of " the Governor and Council, and 
 such freeholders as shall be elected by the major part of the 
 freeholders and other inhabitants of the respective towns or 
 places who shall be present at such elections; each of the said 
 22*
 
 246 FALSE SYSTEM OF 1692. 
 
 towns and places being hereby empowered to elect and depute 
 two persons and no more" &c. At the same time, it gave the 
 next General Court power to regulate further the representa- 
 tion. This power was exercised by an act passed the next 
 year. By it " every town consisting of the number of forty 
 freeholders, and other inhabitants qualified by charter to elect, 
 shall send one freeholder as their representative," every town 
 consisting of one hundred and twenty freeholders, &c. might 
 send two representatives, each town having less than forty 
 freeholders and more than thirty, might send one representa- 
 tive or not, as it pleased, and towns having less than thirty 
 might send one, or join with the next towns, they paying a 
 proportionable part of the expense. No town could send 
 more than two, excepting Boston, which could send four. 
 
 Here, again, it is easy to trace the models of the borough 
 system of Great Britain. Here the representation was of 
 toivns, and not of persons ; it was limited not to exceed two 
 representatives, without regard to inequality in the excess 
 of numbers in the respective towns over one hundred and 
 twenty freeholders, excepting only the case of Boston, which, 
 like the capital at home, London, was entitled to four mem- 
 bers, and each town paid the expenses of its own represent- 
 atives. 
 
 Such was the system as established in 1692 ; but the natu- 
 ral consequence of making corporate towns stand for men and 
 women was not slow to show itself. Some towns prospered 
 very much, whilst others went backward and withered away. 
 The people, however, who removed from the one to the other, 
 carried with them none of their rights of representation. 
 These remained fixed to the houses and trees known 
 under the name o f the town they left. That to which 
 they came gained their industry, it is true, but it gained no 
 political power by the transfer. The arithmetic of corporate 
 rights, which started by calling one hundred and twenty equal 
 to one hundred and twenty, was not the less positive that it 
 was right, when it came to cipher out four hundred and eighty 
 to be equal to one hundred and twenty, and therefore to be 
 equally represented by two members. 
 
 But with the dawn of the year 1776 there came new ideas ;
 
 SYSTEM CHANGED, 1776-1780. 247 
 
 and the General Court of that year began a law in these 
 words : 
 
 " Whereas, The present representation of this Colony is not so 
 equal as it ought to be, and this Court being desirous to have the same 
 as proportionate as it can in the present state of the Colony be made, 
 
 " Be it enacted, &/c., That each town containing two hundred and 
 twenty freeholders, &c. shall at all times have the privilege of sending 
 three members to represent them, and those which have three hun- 
 dred and twenty, die. may send four, and in that proportion for any 
 greater number of freeholders." 
 
 This was the first endeavor to change the basis by engraft- 
 ing the rule of numbers upon that of corporate representation. 
 It lasted but a short time, because a new instrument of gov- 
 ernment was framed in 1780, only four years later, which is 
 the Constitution under which we still live. To that, as it 
 first stood, I beg now very briefly to call your attention. 
 
 The first article says : 
 
 " There shall be, in the Legislature of this Commonwealth, a repre- 
 sentation of the people annually elected, and founded upon the prin- 
 ciple of equality." 
 
 Undoubtedly this meant that all the representatives should 
 be elected every year. It did not mean any thing like what 
 has been since adopted, a representation for one, two, three, 
 four, or more years out of ten, and none at all for the other 
 years. 
 
 The second article says : 
 
 " And in order to provide for a representation of the citizens of this 
 Commonwealth, founded upon the principle of equality, every corpo- 
 rate town containing 150 ratable polls may elect one representative ; 
 every corporate town containing 375 ratable polls may elect two 
 representatives ; every corporate town containing 600 ratable polls 
 may elect three representatives ; and proceeding in that manner, 
 making 225 ratable polls the mean increasing number for every 
 additional representative. 
 
 "Provided, nevertheless, that each town now incorporated, not 
 having 150 ratable polls, may elect one representative ; but no place 
 shall hereafter be incorporated with the privilege of electing a repre- 
 sentative, unless there are within the same 150 ratable polls.
 
 248 STILL TOWNS, NOT PEOPLE. 
 
 " And the House of Representatives shall have power, from time to 
 time, to impose fines upon such towns as shall neglect to choose and 
 return members to the same, agreeable to this Constitution. 
 
 " The expenses of travelling to the General Assembly, and returning 
 home, once in every session, and no more, shall be paid by the govern- 
 ment, out of the public treasury, to every member who shall attend as 
 seasonably as he can in the judgment of the House, and does not 
 depart without leave." 
 
 Here it should be noticed that the idea of representation is 
 once more made to attach to towns as corporations, and an 
 attempt is made to engraft on it a scale of increase according 
 to numbers. The sending or not sending was a voluntary act 
 on the part of the town ; and the person so sent as representa- 
 tive was to be compensated by the town, and not by the Com- 
 monwealth. 
 
 Here again peeps forth the origin of Massachusetts repre- 
 sentation in the old boroughs of the mother country. They 
 paid their representatives. So did our towns. They often 
 tried to avoid and escape the charges of supporting any 
 by omitting to send them. So did our towns. They were 
 threatened with, penalties for their dereliction. So power is 
 given to the General Court to impose fines upon towns which 
 neglect to send representatives. The leading and preponder- 
 ating idea still remained as before, representation of corporate 
 towns, and not of persons. Every corporate town was entitled 
 to send, no matter what its numbers. The equilibrium was 
 restored by establishing a certain proportion between the num- 
 bers and representatives peculiar to each. The system thus 
 established was not inconsistent with the declaration by which 
 it was introduced, but it was not made to survive the necessity 
 that occasioned it. As a piece of workmanship, it is far more 
 coherent and consistent than any thing which preceded or has 
 followed it, but time and the multiplication of numbers made 
 action under it cumbrous and inconvenient. 
 
 It is unnecessary for rne to go into any further detail respect- 
 ing the amendments since made. The Convention of 1820 
 proposed one, but it was rejected by the people. A great 
 change took place when the payment of the compensation to 
 the delegate was transferred from the town to the Common-
 
 . ROTTEN-BOROUGH SYSTEM. 249 
 
 wealth. He ceased to be the representative exclusively of his 
 own town, and became more that of the Commonwealth at 
 large. His presence, too, became a matter of much more 
 consequence to the interests of all the other towns. For each 
 of them is of course liable for its share of the general burdens, 
 and if each of the small towns obtains more than its propor- 
 tion of representation, the expense does not fall upon them, 
 but upon the large towns. Hence arises one of the great 
 features of inequality and injustice in the present amendment. 
 The small towns not only gain an undue share of power over 
 the expenditures of the government, but the large towns pay 
 both the burdens imposed by them and the expenses of those 
 who are sent to impose them ! 
 
 The inconsistency of all the amendments of the present age 
 consists in this, that they rest upon no principle. They do not 
 follow the representation of towns, because they disfranchise 
 them without scruple a large part of the time. They do not 
 follow the only democratic rule, that of numbers, because, for 
 certain purposes, they acknowledge and establish an equality 
 between unequal numbers in towns. In this regard I think 
 the proposed amendment which we are now considering is 
 worse, rather than better, than its predecessors. Whilst it 
 does not carry out consistently the corporate rights of towns, 
 it goes a great way to aggravate and extend the inequality of 
 numbers, by enormously enlarging the franchise of the smallest 
 of them. Instead of going forward, it goes straight backward 
 to the borough system, and leaves an opening for the first 
 time to what has happened in England, the influence of de- 
 cayed boroughs. By the existing Constitution, ten small 
 towns which I can name, although enjoying a far greater priv- 
 ilege than their numbers could claim, yet have but twenty-five 
 representatives in ten years. By the proposed plan the same 
 towns are to be entitled to sixty, and that in spite of the fact 
 that they are mostly towns in which the numbers are dimin- 
 ishing. But this diminution is not to make any difference. 
 They may continue to send representatives until the popula- 
 tion diminishes to fifty souls or less, and the voters to five or six. 
 Now I do not see how this differs in any substantial respect 
 from what is denominated the rotten-borough system of the
 
 250 ROTTEN-BOROUGH SYSTEM. 
 
 mother country. By rotten boroughs I understand to be meant 
 nothing more than towns which once had a population en- 
 titling them to be represented in Parliament ; but in the course 
 of time and the changes of occupation, the people have removed 
 or died out, until so few of them are left, that some one wealthy 
 man has it in his power to control their votes through his 
 money, and to nominate whom he chooses for them to elect 
 as members of Parliament. If it become an object to wealthy 
 and ambitious men in Boston to get the control of State in- 
 fluence, I do not see why they could not very easily acquire 
 the same kind of power in some of these small towns. In 
 Hull, for example, there are but thirty-eight voters, few of 
 them very much above the world in their circumstances. Of 
 these, twenty would control the nomination of a representa- 
 tive six years in ten. What would be easier than to buy out 
 two or three of the largest landholders at a good price, and 
 to put in their places tenants of the right way of thinking? 
 There would be no bribery, or corruption, or wrong, or injus- 
 tice in this process; nothing which would not be perfectly 
 fair; and yet such a result would just as much make a nom- 
 ination borough, as if it had been brought about in Bramton, 
 in England, a place of about as many voters before the days 
 of the Reform Bill. 
 
 Neither let it be supposed that the numbers residing in the 
 small towns constitute any distinction in our favor. We 
 know from experience, that these numbers are diminishing 
 regularly at every census. But even as they are, you will be 
 surprised to learn that they fall below many of the boroughs 
 that were disfranchised by the Reform Bill. I have taken the 
 pains to add up the number of voters in ten of the small 
 towns. They make 867, or an average of 86^ for each. I 
 have compared it with the lowest estimates I find of the 
 number of voters in the fifty-six boroughs which the British 
 Parliament abolished. Their population is in many of the 
 cases much larger. These fifty-six boroughs gave 4,293 votes, 
 or an average of 76| to each. Now the difference between 
 our progress and that of Great Britain is, that, whilst they are 
 entirely destroying the separate representation of these bor- 
 oughs, we, are enlarging and extending and confirming the 
 rights of corporations of the same kind.
 
 INEQUALITY. 251 
 
 Democracy, according to ray idea, consists of equal rights 
 to all men under the law, as nearly as human imperfection 
 will allow. Now I find no fault with others for judging dif- 
 ferently, but it is not consistent with my notions to give a 
 moment's sanction to a measure like this, so opposed as it 
 seems to me to every notion of equality. Neither, on this 
 point, does it seem that those who talk the most loudly of 
 progress among us, act in any reasonable degree consistently 
 with their declarations. I have not found the inequality of 
 the system anywhere denied, even by its warmest friends. 
 Mr. Boutwell, the chief pillar of the whole scheme, and a gen- 
 tleman for whose attainments and character I have great re- 
 spect, began his speech in the Convention in defence of it, by 
 saying, " I rise, sir, as a conservative, an unusual character for 
 me." That meant to say, of course, that he was for this time 
 going counter to his usual democratic ideas. And my excel- 
 lent friend, R. H. Dana, Jr., than w r hom I know no clearer- 
 headed, as well as no better and purer man in this community, 
 suddenly found himself acting as the mouthpiece of the party 
 of progress, at the very moment when he was the most con- 
 sistently enunciating the conservative principles which mark 
 his mind and character. Knowing the man as I do, his speech 
 gave me great pleasure ; but I could not help thinking that 
 it would have done honor to Lord Lyndhurst, if he had deliv- 
 ered it in his contest with the Reform Bill of Great Britain, in 
 the House of Lords. It certainly did not express my views, 
 still less the established doctrines of the progressive party. It 
 defended the principle of inequality. It justified the discrimi- 
 nation against the large towns. Now I maintain, that the 
 moment a majority in a republic assumes to draw a distinc- 
 tion with the intent that certain men shall be enabled to enjoy 
 twice or thrice the amount of political power which an equal 
 number of other men are to possess, that is the hour when tyr- 
 anny begins. The fact that my good friend was sailing in 
 the van of the so-called progressive squadron of the Conven- 
 tion upon this occasion, was certainly owing to no deviation 
 of his from his established course. How the democratic fleet 
 came to be under his lee is another question. And that ques- 
 tion is answered by one of their most skilful leaders, Mr.
 
 252 CHARLES SUMNER. 
 
 Boutwell, in his admission that they were playing the part of 
 conservatives. But conservatives of what ? Why, conserva- 
 tives of established abuses of the democratic principle of equal 
 rights for all ! 
 
 The truth is, that, if we are really in earnest in bringing 
 about a reform of this much vexed matter, we must go deeper 
 than we have yet done. We must take the great principle of 
 democratic equality of numbers as our guiding star, and pro- 
 ceed without hesitation wherever it may lead. With it, we 
 must divide the large towns and aggregate the small. After 
 the most deliberate examination I have been able to give to 
 the subject, and that not lately, I am convinced that nothing 
 else will permanently content the great body of the citizens 
 of Massachusetts. The present plan, if adopted, will only 
 share the fate of its predecessors. It remedies no existing 
 evil. 
 
 And here let me remark, that there was one man in that 
 Convention who saw the thing as I see it, and who had the 
 firmness to come out with a full declaration of his sentiments. 
 The speech of my honored friend, Charles Sumner, was not 
 answered in that body. It has never been answered since. I 
 do not believe it can be answered. But I must be permitted 
 to say, that he tacked to it an unworthy conclusion. He lis- 
 tened to the siren song of expediency, coming from some 
 friends who told him that ruin to their hopes would follow 
 from their striking into the path of right. And he bowed his 
 neck to the iron rod of party, at least in his action, if not in 
 his sentiments and words. But had he and I, in the year 1848, 
 listened to the same song, sung quite as skilfully by our then 
 political friends, should we not since have been hunting in the 
 pack led by General Zachary Taylor, and be now singing ho- 
 sannas to the perfections of the Fugitive Slave Law? When 
 our enemies reproached us with placing conscience before 
 every other consideration, we gave a pledge to them which 
 at any cost I am determined to redeem. I will not vote for a 
 fundamental measure which I think bad, because some men 
 who study the course of popular opinion more than I do de- 
 clare that to do otherwise will be injurious to the interests of 
 the party.
 
 ALTERNATIVE PROPOSED. 253 
 
 But I am well aware of the argument that is considered as 
 meeting all this difficulty. It is said, that, admitting all that 
 I say to be true, a remedy is yet presented by the last article 
 added to the proposed Constitution, which provides : 
 
 " The Legislature, which shall be chosen at the general election on 
 the Tuesday next after the first Monday in November, in the year 
 1855, shall divide the State into forty single districts for the choice of 
 Senators, such districts to be of contiguous territory, and as nearly 
 equal as may be in the number of qualified voters resident in each ; 
 and shall also divide the State into single or double districts, to be of 
 contiguous territory, and as nearly equal as may be in the number of 
 qualified voters resident in each, for the choice of not less than two hun- 
 dred and forty, nor more than three hundred and twenty representa- 
 tives; with proper provisions for districting the Commonwealth as 
 aforesaid, in the year 1856, and every tenth year thereafter ; and with 
 all other provisions necessary for carrying such system of districts into 
 operation ; and shall submit the same to the people at the general elec- 
 tion to be held in the year 1856, for their ratification ; and if the same 
 shall be ratified and adopted by the people, it shall become a part of 
 this Constitution, in place of the provisions contained in this Constitu- 
 tion for the apportionment of Senators and Representatives." 
 
 Here, they say, is the very system which I consider the 
 best. Why am I not content ? 
 
 The answer is plain. The duty of preparing this amend- 
 ment will devolve upon a Legislature filled with the spirit of 
 party. The clause of the Constitution now proposed to be 
 adopted will, if it goes into effect, have filled the House with 
 a majority on one side or the other. I care not which, 
 Whig, Democrat, or Free Soil. The working of the amend- 
 ment will secure for it the affections of that majority which it 
 puts into power. I ask, what sort of a tribunal is this before 
 which to go, and solicit a districting bill, the effect of which 
 may be to dethrone them ? They know that, if the districting 
 bill fails of ratification, then the system on which they stand, 
 small towns and all, is to remain for ever. What can be more 
 easy, under shrewd management, than to propose a very fair 
 bill, which would yet be almost sure to fail of ratification ? 
 All this may be done in good faith, by those who have no 
 confidence in a districting bill, and the consequence will be 
 23
 
 254 ALTERNATIVE DELUSIVE. 
 
 the establishment of this rule of inequalities, until a new agi- 
 tation shall make it necessary to summon a new Convention. 
 Some of the leading friends of the Constitution do not pre- 
 tend to anticipate any other result. Mr. Boutwell, in his 
 speech at Berlin, uses the following language respecting it: 
 
 " While, then, a majority of the Convention did not agree to the dis- 
 trict system, they did agree that it is the right of the people to decide 
 the question for themselves, and it is now in their power to establish 
 that system without any cost whatever. 
 
 " I submit to the friends of the district system, that it is the part of 
 wisdom and economy, first to accept the new Constitution, and then, in 
 1856, to take the judgment of the people upon a distinct issue, be- 
 tween the two plans, and therewith to be satisfied." 
 
 Now I must say I am not willing to remain content with 
 so barren a satisfaction. 
 
 I therefore have made up my mind that this provision is a 
 snare, I do not say intentionally put, which will only catch 
 the unwary. I think it safest, on the whole, to take my chance 
 of a change under the present system, which nobody now de- 
 fends, believing that a new proposition, cleared of all accom- 
 paniments of an irrelevant nature, and proposed in a better 
 and more liberal spirit than now prevails, will meet with the 
 ultimate ratification of the people, and be an ornament (which 
 this can never be) to our old and honored Constitution. 
 
 Having at this length stated my main and overwhelming 
 objection to the Constitution proposed, which leads me with 
 certainty to the decision to vote aginst it, because it does not 
 properly regard the equal rights of all, I have scarcely left to 
 myself time, or to you patience, enough to touch upon any 
 other topic. 
 
 [On account of the lateness of the hour, Mr. Adarns was 
 compelled to speak of the remaining topics more concisely 
 than was consistent with their importance, and as he has not 
 written out the rest of his speech, we should not fully present 
 his views, even if it were worth while to give from our own 
 notes, as we might, a complete report of what he did have 
 time to say. We therefore give simply an outline of what 
 folio wed. 1
 
 JUDICIARY. 255 
 
 Mr. Adams proceeded to consider the amendment in the 
 Bill of Rights, rendered necessary by the change in the tenure 
 of the judges. He quoted from the existing Bill of Rights 
 (" for which," said he, " I need not say I have the greatest 
 cause to feel the utmost veneration, and in which I should be 
 jealous of all changes which do not improve the character of 
 the instrument") the twenty-ninth article, as follows: _ 
 
 " It is essential to the preservation of the rights of every individual, 
 his life, liberty, property, and character, that there be an impartial in- 
 terpretation of the laws, and administration of justice. It is the right 
 of every citizen to be tried by judges as free, impartial, and indepen- 
 dent as the lot of humanity will admit. It is, therefore, not only the 
 best policy, but for the security of the rights of the people, and of 
 every citizen, that the Judges of the Supreme Judicial Court should 
 hold their offices as long as they behave themselves well, and that they 
 should have honorable salaries, ascertained and established by stand- 
 ing laws." 
 
 He proceeded to point out the consistency and harmony of 
 the reasoning of this article, and the irresistible manner in 
 which the conclusion follows from the premises, contrasting 
 strongly with the gross inconsistency of the article as it is pro-- 
 posed to be amended, as follows : 
 
 " It is essential to the preservation of the rights of every individual, 
 his life, liberty, property, and character, that there be an impartial in- 
 terpretation of the laws, and administration of justice. It is the right 
 of every citizen to be tried by judges as free, impartial, and indepen- 
 dent, as the lot of humanity will admit. It is therefore not only the 
 best policy, but for the security of the rights of the people, and of 
 every citizen, that the Judges of the Supreme Judicial Court should 
 hold their offices by tenures established by the Constitution, and should 
 have honorable salaries, which shall not be diminished during their 
 continuance in office." 
 
 Mr. Adams said he believed that the principle enunciated 
 in the original article is now as true as it was when it was 
 written. He proceeded to analyze the principles which regu- 
 late the character of the judicial tenure, and showed in a most 
 convincing manner, that the tenure during good behavior, so 
 far from being a feature at variance with other parts of the 
 Constitution, is consistent with all of them, and necessary to
 
 256 INEQUALITIES. COALITIONS. 
 
 secure their harmony. He declared that the only safeguard 
 which one or two individuals, or the few, have against injus- 
 tice from the many, for the protection of their individual 
 rights, is found in the strength given to the moral courage of 
 the judges, by placing them in such a position that they are 
 not afraid to offend the majority. If there be such a thing as 
 a true democratic principle, this is one. To limit the tenure 
 of the judges, throws them directly into the vortex of politics, 
 and makes them what all our politicians now are, weather- 
 cocks. 
 
 So important a change as this should not be hastily and 
 rashly made, when nothing can be lost by waiting, and much 
 may be gained from the experience of other States. Nowhere 
 has the plan been tried where sufficient time has elapsed 
 to give a right idea of the result. The election of judges 
 by the people, to hold office during good behavior, would not 
 be half so objectionable as the limitation of their tenure while 
 their appointment is in the hands of the Executive, who is 
 the very incarnation of party feeling and party prejudice. 
 
 Mr. Adams alluded next to the inconsistency and incongru- 
 ity in the rules of election for various officers under the pro- 
 posed Constitution ; the Governor to be chosen by a majority, 
 and, failing to obtain that, in the old, complicated method, al- 
 tered only by reducing the number of candidates to be selected 
 from by the House from four to three, Senators and Coun- 
 cillors to be chosen by majorities, Representatives by plural- 
 ities, &c. If the plurality rule be good in one case, why not 
 in the others ? The existing Constitution consistently requires 
 a majority throughout. Why is a change made ? And why 
 is the number of candidates in the Legislature reduced ? If 
 one principle more than another is demanded by the progress 
 of democratic ideas, it is the abolition of elections o fofficers 
 by the Legislature, and the giving them to the people. This 
 led Mr. Adams to speak of coalitions, which he seemed to 
 think justifiable under the present Constitution, since it was 
 but natural for two minority parties to adopt the only way 
 they could, to defeat the majority party ; but the system was 
 at fault, and the opportunity for remedying the defect which 
 the Convention afforded should have been improved.
 
 POLITICAL HONESTY. 257 
 
 For Heaven's sake, let us do nothing to augment the temp- 
 tations to negotiation of offices. Keeping our minds and 
 hearts pure before God and man, let us regard the guidance 
 of public affairs as a solemn trust springing from the confi- 
 dence of our fellow-citizens, and not to be gained by any 
 unworthy acts. The path of politics is a path strewed with 
 burning ploughshares. Let us seek to tread it, worthily, 
 boldly, honestly, if we tread it at all. And let us fall with 
 honor, if fall we must. 
 
 23
 
 REMARKS 
 
 PROPOSED STATE CONSTITUTION, 
 
 JOHN GORHAM PALFREY. 
 
 PUBLISHED OCTOBER, 1853.
 
 REMARKS 
 
 i. 
 
 OBJECTS OF A CONSTITUTION. DIVISION OF POWERS AND OF 
 
 SUBJECTS. 
 
 THE objects of a Constitution of Government cannot be 
 better stated than in the following language of the Preamble 
 to the Massachusetts Constitution of 1780 : 
 
 " The end of the institution, maintenance, and administra- 
 tion of government is to secure the existence of the body 
 politic ; to protect it ; and to furnish the individuals who 
 compose it with the power of enjoying, in safety and tran- 
 quillity, their natural rights and the blessings of life." 
 
 " It is the duty of the people, in framing a Constitution of 
 Government, to provide for an equitable mode of making 
 laws, as well as for an impartial interpretation and a faithful 
 execution of them." 
 
 It concerns the public well-being, that there should be " an 
 equitable mode of making laws." Therefore a Legislative 
 department is to be constituted, and so constituted as to afford 
 the greatest possible security to the people that the laws shall 
 be equitably made, and that they shall express the people's 
 deliberate will, and be just and salutary. 
 
 It concerns the public, that there shall be " an impartial 
 interpretation " of the laws. To this end, there must be a 
 Judicial department ; and it must be so constituted that the 
 judges may be " as free, impartial, and independent as the 
 lot of humanity will admit."
 
 262 
 
 OBJECTS OF A CONSTITUTION. 
 
 It concerns the public, that there shall be a " faithful execu- 
 tion " of the laws. To this end, there must be an Executive 
 department ; and it must be so constituted that the laws shall 
 be promptly and completely carried into effect, according to 
 their true tenor, in every case calling for their intervention. 
 
 The principles set forth in these statements will be assumed 
 in the following discussion. Upon these principles it was, 
 that, in 1780, that " Frame of Government " was reared for 
 Massachusetts, under which, to a rare extent, her people have 
 enjoyed the blessing of just and wholesome laws, ably and 
 honestly administered, and efficiently executed. 
 
 The Constitution of 1780, recognizing the people's " right 
 to institute government, and to reform, alter, or totally change 
 the same, when their protection, safety, prosperity, and hap- 
 piness require it," made it obligatory on the Legislature of 
 fifteen years later, to submit to the people the question of a 
 revision. But the people, after the experiment of that length 
 of time, desired no revision ; and none was made. Twenty- 
 five more passed in the same content, when the separation of 
 Maine, making some of the provisions of the old Constitu- 
 tion impracticable, occasioned a Convention to be called for 
 its revisal. 
 
 The time was favorable for disinterested and calm delibera- 
 tion. It was what was called " the era of good feelings." At 
 no period of our national existence has there been such a lull 
 of party strife. The Convention showed a brilliant array of 
 wise and patriotic men of all parties. Anti-Democratic Bos- 
 ton took a part of its delegation from the Democratic ranks, 
 and the same was true of other towns. As the result of its 
 labors, the Convention proposed to the people fourteen dis- 
 tinct amendments, of which the people, upon the reference to 
 them in their primary assemblies, considering and passing 
 upon each qn its own merits, as was the proper course, 
 finally adopted nine, and rejected five. 
 
 Among the amendments thus ratified was one for making 
 future specific amendments, by means of a certain action of 
 the Legislature in two successive years, confirmed by a ma- 
 jority of the people. From time to time, in the progress of 
 events and of opinions, some further changes have been
 
 DIVISION OF SUBJECTS. 263 
 
 deemed desirable, and have accordingly been made by this 
 machinery. But in each and every instance of such action, 
 as well as in the action of the Convention of 1820, single 
 questions have been submitted to the people, to be by them 
 considered and determined, on their own respective merits, 
 separately, and independently of all other questions. 
 
 This was the fair way of dealing with the people, and of 
 getting a true expression of their sentiments respecting the 
 fundamental law by which they desired to be governed. When 
 no constitutional government existed, when a frame of 
 government was to be reared from the foundation, as in 1780, 
 it was unavoidable to present a constitution to the people 
 as a whole. But, since the first years of its operation, there 
 never has been a question of any thing more than amending 
 it. There never has been the most insignificant fraction of 
 the people who would have listened to the proposal of sweep- 
 ing it out of being, and beginning anew. One voter, or one 
 interest, or one party, may like one change ; and another, an- 
 other ; and whatever change the majority of the people, on 
 full consideration, desires, ought to be adopted. The people 
 have a right to vote for what they like, and against what 
 they dislike ; every citizen has that right ; and it has been 
 recognized in all steps which have heretofore been taken to 
 effect constitutional reforms. 
 
 But from this method the course taken by the Constitu- 
 tional Convention of the present year is a total and violent 
 departure. Disclaiming any sentiment but one of perfect 
 respect for many of those who voted for this arrangement, 
 among whom I know there were men who never by possi- 
 bility could intend to do any thing unfair, still I cannot help 
 feeling that that Convention has encroached on my rights, as 
 an humble citizen, in the way in which it presents questions 
 of the last importance for my vote. Its result has the shape 
 of a stupendous piece of log-rolling. We, the people, are 
 compelled to answer, in a single syllable of affirmation or 
 denial, to a mass of diverse and incongruous matters, set 
 forth in some hundred and forty or hundred and fifty articles, 
 new and old. Of the mass of changes proposed, we have no 
 choice but to take the whole or none. Timothy Dexter got
 
 264 DIVISION OF SUBJECTS. 
 
 off his ill-assorted cargo in the West Indies, by insisting that 
 whoever bought a sugar-dipper should take a pair of skates. 
 If, in order to get what we desired, we were only compelled 
 to take what would be of no use to us, our case would be no 
 worse than that of his customers. But we do not fare so 
 well. If we want a provision for the choice of Senators by 
 single districts, the Convention tells us that we shall not be 
 gratified, unless we will vote, at the same time, that one man 
 in Monroe shall have as much weight and power in the House 
 of Representatives as six men in Deerfield. If a friend of 
 Common Schools desires a constitutional provision for a large 
 appropriation for their support, he must buy it by consenting 
 to an invasion of the independence of that judicial adminis- 
 tration which protects his fireside. Nay, oddest of all tricks 
 of political legerdemain, if one favors the system of single 
 districts for the choice of representatives, he must work his 
 way to that system by first voting it down, and establishing 
 the opposite one in its place. I say, it is a grave wrong and 
 affront to the free people of this Commonwealth, to put them 
 in such durance as this. It is usurpation over their right of 
 choice in matters of the most profound concern, to force them 
 into that position that they can do no better than balance 
 things which they approve and things which they condemn 
 against each other, so as to determine whether, on the whole, 
 it is best to bring on themselves the evil for the sake of get- 
 ting the good, or to go without the good for the sake of es- 
 caping the evil. They have a right to the opportunity of 
 voting for nothing but the good, and against nothing but the 
 bad, or what they think so. 
 
 It is said that a new draft of the Constitution was prefer- 
 able, as the accumulation of amendments upon amendments 
 would bring it into an inconvenient shape. The remark has 
 weight. Suppose it to have decisive weight; what follows? 
 That the people should be cornered, as they now are ; that 
 a course should be taken so disrespectful to their good sense, 
 and so violative of their right of free action ? Not at all. If 
 the reason of convenience was urgent, and I shall not deny 
 that it was so, the Convention, after agreeing on the amend- 
 ments to be proposed to the people, should have made provis-
 
 THE SENATE. 265 
 
 ion for submitting them separately; then adjourned over till 
 such time as admitted of the vote being taken ; and then 
 come together again, and digested into one draft the amend- 
 ments which were ratified ; which last process might have 
 been the work of twenty-four hours, or of three times twenty- 
 four. Why was not this natural, just, and safe course pre- 
 ferred ? Because it would have taken time ? If there were 
 any party objects which might be served by gaining time, 
 they would present an intelligible reason, but not a reason 
 which the majority of Massachusetts citizens would probably 
 approve. Because it would have cost money ? How much 
 would it have cost ? Two thousand dollars, or three ? And 
 in what proportion may it be feared that two or three, or two 
 or three scores, or two or three hundreds of thousands of dol- 
 lars, will be outweighed by the mischiefs of erroneous action 
 in a matter of this moment ? And what citizen, rich or poor, 
 that has the dullest sense of the interests and the obligations 
 involved, would not rejoice to pay his part of the cost, for the 
 sake of being free to cast his vote with satisfaction, and ac- 
 cording to his judgment ? 
 
 II. 
 
 THE SENATE. 
 
 FROM the beginning, the Legislature of Massachusetts, as 
 of all well-constituted republics, has consisted of two branches. 
 The provision for the Senate, or " first branch," in the Consti- 
 tution of 1780, was, that an aggregate of forty persons should 
 be chosen in districts by a majority of the qualified voters 
 therein. From among these forty, the General Court, when 
 it should convene, was to select nine to compose the Execu- 
 tive Council. Those of the forty who should not be chosen 
 Councillors, or should not accept that trust, were to constitute 
 the Senate. At first, the counties (except Dukes and Nan- 
 tucket, which were united) were to be districts for this pur- 
 pose, and the number of Senators to be voted for was by the 
 Constitution apportioned to the districts respectively. But 
 24
 
 266 THE SENATE. 
 
 the Legislature was, from time to time, to district the Com- 
 monwealth anew, under the restrictions, that the districts were 
 never to be more than forty in number, nor fewer than thir- 
 teen ; and that no district should be " so large as to entitle 
 the same to choose more than six Senators." 
 
 Had this article of the Constitution continued in force, it 
 would have been in the power of the General Court to make 
 that change which by general consent is demanded at the 
 present time. By a simple legislative act, forty senatorial 
 districts might have been constituted, each to choose a single 
 Senator. But an amendment of the Constitution, made in 
 1840, recognized the existing county system of senatorial dis- 
 tricts, and provided that " the said districts, so established," 
 should " be permanent." This was an unfortunate measure, 
 as time has proved. 
 
 The manner of constituting the Senate and the House of 
 Representatives, unsatisfactory as to both branches, for rea- 
 sons applicable to each branch severally, was the great cause 
 which moved the people to call a Convention in the present 
 year. As to the Senate, if any district fails to make a choice 
 by a majority of votes, the vacancy must be filled by a joint 
 ballot of the two Houses, from the candidates of the two par- 
 ties which have thrown the largest number of votes. After 
 the rise of a third, the Liberty party, and subsequently the 
 Free Soil party, the inconvenience, and, as things stood, 
 injustice of this arrangement, began to be seriously felt. In 
 1843, fifteen vacancies in the Senate were filled from a party 
 which was in a minority in the State, by means of a majority 
 of one or two in the House of Representatives, and as many 
 among the Senators chosen by the people ; and the same op- 
 eration decided the choice of Governor, no popular election 
 of that magistrate having been made. Thus the control of 
 both the executive and legislative departments was secured 
 that year to the party which had cast 56,200 votes for its 
 gubernatorial candidate, while one other party had cast 
 54,700, and the other 6,500. In constituting the government 
 of the present year, things worked the other way. The Whig 
 party, which had thrown 56,500 votes for its Governor, while 
 the aggregate vote of the other two parties was 69,000, hav-
 
 THE SENATE. 267 
 
 ing a majority in the House of Representatives, filled the 
 vacancies in the Senate with its men, and had the control of 
 that body. 
 
 This state of things occasioned dissatisfaction in all quar- 
 ters. It was unjust, inconvenient, irritating, on all accounts 
 undesirable. There were other objections to the existing con- 
 stitution of the Senate. The districts were too unequal in size ; 
 there was no good reason why a lean majority in the district 
 of Dukes and Nantucket, comprising 1,400 voters, should send 
 one Senator, while a majority equally meagre in the great 
 district of Suffolk or of Essex should have power to elect six, 
 thus depriving the minority in those districts, however large, 
 of all power. 
 
 Such considerations led to a very general desire for that 
 provision which is proposed in the new draft of the Constitu- 
 tion, viz. that the Senators should be chosen by a plurality 
 of votes in forty districts, entitled each to one Senator. How 
 general, how nearly approaching to unanimity, is the desire 
 for this provision, appears from the action of the recent Con- 
 vention. There were only four votes against the amendment, 
 and not one of these was given by a Whig, the party which 
 has recently found its advantage in the existing state of things. 
 And, in the resolutions passed at its recent Convention for 
 nominating State officer^, the obtaining an amendment 
 of the Constitution to secure "the election of the Senate 
 from single districts" is announced as a feature of Whig 
 policy. 
 
 Nobody finds fault with this amendment. Everybody 
 wants it. There are, it is true, some serious theoretical objec- 
 tions to the rule of a plurality, which, as distinguished from a 
 majority, is of course the smaller number of the voters. In a 
 strict application of our republican doctrines, it is undoubtedly 
 true that the will of the smaller number has no right to pre- 
 vail against the will of the larger ; and that, if an aggregate 
 of voters some for one reason, some for another, some 
 preferring one man, some another choose to say that cer- 
 tain candidates for office shall not be put into office, even at 
 the risk of the offices remaining unfilled, they have a right to 
 say so, and to have their will prevail. And this has, down to
 
 268 
 
 THE SENATE. 
 
 the present time, been the doctrine of Massachusetts. The 
 principle of elections by a plurality, against the will of a ma- 
 jority, has never been recognized by her till within three years, 
 and then only in the case of the election of Electors of Presi- 
 dent and of members of Congress. But, on the other hand, 
 government must go on. It will not do to have an anarchy. 
 And whenever experience shows that there is danger of such 
 a want of unanimity among the electors as may prevent the 
 government, some year, from being put into working condition 
 through the operation of the majority principle, it seems una- 
 voidable to adopt that method of choosing, which, among all 
 surely practicable methods, comes nearest to it ; that is, that 
 elections should be made by pluralities. 
 
 Such experience, and such considerations, appear to have 
 reconciled the people of Massachusetts, of all parties, to the 
 only objection to the proposed amendment, while the weighty 
 reasons which recommend it command wellnigh universal 
 assent. We can have the amendment at once, without buy- 
 ing it by any sacrifice in respect to other things, as soon as 
 the forms can be gone through, provided by the existing Con- 
 stitution. As there is no opposition, there need be no appre- 
 hension of delay. We can adopt the amendment in that 
 manner as an independent proposition, in season to choose 
 our Senators under it in the autumn of 1855. If we adopt 
 it as it stands in the scheme of the late Convention, we may 
 choose our Senators under it in the autumn of 1854. One 
 year is just the difference in point of time. But the difference 
 in another respect is vast. In one way, we get the benefit 
 without a particle of accompanying loss. In the other way, it 
 is offered to us at the expense of sacrifices which are excessive, 
 and beyond its worth ; and which, if they were much less than 
 they are, are entirely needless and uncalled for. 
 
 The people of Massachusetts have shown themselves wide 
 awake to any attempt to coax them into one measure through 
 the temptation offered by some other. The Constitutional 
 Convention of 1820 was a body singularly free from party in- 
 fluences; but the people's vigilance did not sleep, for that. 
 How tender they were upon this point, how jealous of any 
 semblance of log-rolling, will be evident to whoever will look
 
 THE SENATE. 
 
 at their action on the amendments submitted to them by the 
 Convention of 1820. They wanted more freedom in respect 
 to religious and parochial affairs, and the First Article of 
 amendment gave them much more. But they would not take 
 it, coupled with certain provisions of that article which they 
 regarded as continued limitations of the benefit which they 
 sought. They rejected the article, choosing to wait longer for 
 what they wanted, rather than accept it on such terms ; and 
 they actually did wait accordingly twelve years, till in 1833 
 they put their will on the subject into a satisfactory shape. 
 The Fifth Article embraced various important provisions, sub- 
 sequently adopted ; it abolished what had long been the empty 
 form of choosing Councillors first from the Senate ; and it 
 offered the lure of a constitutional provision for paying the 
 Representatives from the treasury of the Commonwealth, in- 
 stead of from that of the towns. But because (though im- 
 measurably less objectionable in this respect than the Consti- 
 tution now offered) it embraced a variety of provisions, some 
 intended, as they thought, to force the others through, they 
 voted it down, and took their own time to make the changes 
 they desired, one by one. The Ninth Article made a useful 
 and popular addition to the provisions respecting the tenure 
 of the office of Justice of the Peace ; but because it was con- 
 nected with, and appeared designed to carry through, another 
 provision restraining the liberty of removal by address, the 
 people would none of it. The Tenth Article, relating to 
 Harvard College, shared the same fate. It proposed to open 
 the Board of Overseers to ministers of all denominations, a 
 measure which the people favored, and which was adopted in 
 due time ; but because with this provision was associated 
 what was construed as a further grant of power, the article 
 failed to be ratified by the popular vote. 
 
 The people of Massachusetts are as hard to outwit in 1853, 
 as 'they were in 1820. They have sense enough to know that 
 when they want to do some duty, or obtain some benefit, it is 
 not necessary to find their way to it through the doing of 
 something which would discredit, or the submitting to some- 
 thing which would harm them. And whoever attempts to 
 24*
 
 270 THE HOUSE OF REPRESENTATIVES. 
 
 put them into straits of this sort cannot reckon on taking any 
 thing by his motion.* 
 
 III. 
 
 THE HOUSE OF REPRESENTATIVES. 
 
 Under the Constitution of 1780, each corporate town with 
 one hundred and fifty ratable polls might elect one represent- 
 ative ; each town with three hundred and seventy-five polls, 
 two representatives ; and so on, " making two hundred and 
 twenty-five ratable polls the mean increasing number for 
 every additional representative." As the population of the 
 Commonwealth increased, this arrangement returned too large 
 a House ; too large, certainly, for economy ; too large, perhaps, 
 for convenient deliberation. There have been Houses, unless 
 my memory is at fault, consisting of more than six hundred 
 members. 
 
 The Convention of 1820 in vain proposed a remedy. The 
 main features of its plan were, that each corporate towrt con- 
 taining 1,200 inhabitants might elect a representative every 
 year ; that 2,400 inhabitants should be the mean increasing 
 number to entitle a town to additional representatives ; and 
 that towns with fewer than 1,200 inhabitants should have the 
 privilege of representation every other year, and also in the 
 year of the decennial return of valuation of estates ; the mean 
 increasing number to be proportionally increased by the Legis- 
 
 * On this subject of the Senate, it is worth remarking, that the new Constitution 
 
 provides (Chap. II. Art. 3), that the Governor and Council shall count the votes 
 
 for Senators, " and ascertain who shall have received the largest number of votes 
 
 in each of the several senatorial districts, and the person who has so received the 
 
 largest number of votes in each of said districts shall be a Senator for the following 
 
 political year." If so, what becomes of the other provision (Chap. I. Art. 11), that 
 
 each branch shall be the final judge of the elections, returns, and qualifications of 
 
 its members " 1 Which is to rule, Chap. II. Art. 3, or Chap. I. Art. 11 ? The 
 
 existin"- Constitution has no such contradiction. It directs (Chap. I. Sec. II. Art. 
 
 3^ that the Governor " shall issue his summons to such persons as shall appear to 
 
 be chosen by a majority of voters, to attend on that day [the day of assembling 
 
 f the General Court], and take their seats accordingly" ; the question whether they 
 
 re truly elected, so as that they " shall be Senators for the following political year," 
 
 . st m reserved for examination in the Senate.
 
 THE HOUSE OF REPRESENTATIVES. 271 
 
 lature every tenth year, so as to keep down the House to the 
 number of 275. But these provisions were mixed up with 
 other things in the Fifth Article of Amendment, and the 
 people rejected the whole together. Several years after, they 
 took up the same scheme of representation as a separate ques- 
 tion, and in 1840 adopted it with modifications, one of which 
 was, that towns with fewer than 1,200 inhabitants should elect 
 a representative* as many times within ten years as the num- 
 ber 160 should be contained in the number of its inhabitants. 
 As so established, the provision, with that for successive ex- 
 tensions of the ratio, stands at the present day. 
 
 In place of this, the proposed amendment of the recent 
 Convention provides, that every town, however small, shall 
 have a representative six years out of ten ; that towns with 
 one thousand inhabitants, and fewer than four thousand, shall 
 have a representative every year ; and that, for additional rep- 
 resentatives in a town, four thousand inhabitants shall be the 
 mean increasing number. In cities, instead of the choice by 
 general ticket as heretofore, it provides that there shall be a 
 division into districts ; no one district to elect more than three 
 representatives. 
 
 The existing plan of representation is bad. This is worse. 
 It retains the objectionable features of the old system, and 
 aggravates them. 
 
 The plan of representation part of the time, and no repre- 
 sentation another part, is an utterly indefensible and absurd 
 anomaly in republican government. If the representative 
 were but a medium for drawing, through the pay-roll, some- 
 thing for his town from the public chest, there would be some 
 sense in the arrangement of sending him on that errand once, 
 twice, or five times in ten years. But the question is of the 
 right of a town of a portion of the Commonwealth to 
 have some share in making the laws that govern it. If a right 
 of that kind exists, it exists for all years and every year. If 
 it does not exist for the whole time, it exists for no part of the 
 time. The plan of occasional representation is just as reason- 
 able as it would be for a man to make three full meals a day, 
 and then go without eating, in alternate weeks. 
 
 The representation of population in the Senate, and of cor-
 
 272 THE HOUSE OF REPRESENTATIVES. 
 
 porations (in other words, of property) in the House, is a re- 
 versal of the ancient relations of the two branches. Municipal 
 corporations are, in a just sense, money corporations. They 
 are created and exist for the protection and management of 
 property, while personal rights and liberties are guaranteed by 
 the laws of the Commonwealth. The towns must keep up a 
 police, schools, roads, almshouses, &c., but it is the money 
 regulation of these matters that belongs to them, the obliga- 
 tion to use their money for such purposes being imposed on 
 them by the State laws. Under the Constitution proposed, 
 the smaller branch of the Legislature is the popular branch. 
 The popular element is represented in the Senate, chosen on 
 the basis of population ; corporations are represented in the 
 House. 
 
 The strict republican principle is, that all citizens shall have 
 equal political power; in other words, that they shall have a 
 share of representation in the public councils, in proportion 
 to their numbers. The proposed Constitution violates that 
 principle also, and violates it much more seriously than that 
 which it is intended to supersede. The town of Wenham, 
 by the last census, has 1,003 inhabitants, and in ten years has 
 five representatives in the General Court. Boston has 138,788 
 inhabitants, and 440 representatives in ten years. In other 
 words, her representative power, by the existing Constitution, 
 is to that of Wenham as 88 to 1, while her population is as 
 138 to 1 ; two men in Wenham having more power than three 
 in Boston. This is a great inequality ; and, so far from being 
 remedied by the amended Constitution, is proposed to be 
 largely increased. By that plan, Wenham will have one rep- 
 resentative, and Boston thirty-five, every year; each citizen of 
 Wenham having nearly four times as much political power as 
 a citizen of Boston. 
 
 New Ashford, in Berkshire, has 210 inhabitants, and sends 
 two representatives in ten years. Pittsfield, in the same 
 county, has 6,032 inhabitants, and sends twenty representa- 
 tives in the same time. That is, the political power of a voter 
 in New Ashford is more than three times that of a voter in 
 Pittsfield. So it stands at present. According to the tables 
 in the Secretary's Report of February 3, 1852 (Senate Docu-
 
 THE HOUSE OF REPRESENTATIVES. 
 
 ment of 1852, No. 18), New Ashford, keeping up its recent 
 ratio of decrease in population, will contain but 193 inhabit- 
 ants in 1860; but it will then, according to the proposed Con- 
 stitution, send six representatives in ten years ; while Pitts- 
 field, with 8,927 inhabitants, will (by the mean increasing 
 ratio of that time) be entitled only to twenty. The popula- 
 tion of Pittsfield will be to that of New Ashford as 277 to 6, 
 while her representative weight will be to that of New Ash- 
 ford as 20 to 6. A New Ashford voter will have nearly four- 
 teen times as much weight in the House of Representatives 
 as a voter in Pittsfield. His present excess will be more than 
 quadrupled. 
 
 It is alarming to think to what this may grow. It looks 
 like a rapid movement towards the rotten-borough system. 
 When thirty or forty voters in New Ashford can send a repre- 
 sentative to the General Court six years out of ten, a franchise 
 there will presently have a money value. Its last valuation 
 was $99,966; that of Mount Washington, $93,402; of 
 Clarksburg, $ 94,835 ; of Monroe, $ 60,538. There are not a 
 few men in Boston who could each buy the property of ten 
 such towns ; and if they could command votes in the Legis- 
 lature by being landlords, they would have a motive to do so. 
 These four towns, with an aggregate population of 1.049 in 
 the year I860,* will, by the proposed arrangement, be entitled 
 to send twenty-four representatives to the General Court in 
 ten years, instead of the eight that they now send. The pop- 
 ulation of all of them has decreased and is decreasing from 
 one census to another; but the prodigious and increased com- 
 parative power which by the proposed Constitution is to be 
 conferred is, by the same Constitution, never to be less than it 
 
 * I have referred to a census in 1860, &c., so that the figures might be verified by 
 Mr. Secretary Walker's tables, as was done in the Convention, in argument in favor 
 of the project (Official Report, &c., Vol. II. p. 95). By the proposed Constitution, 
 the decennial census is to be taken in 1855, 1865, &c., instead of 1860, 1870, &c. 
 But the operation is the same ; viz. that, while the towns which are to send six or 
 ten representatives in ten years are never to lose any of their power, the relative 
 power of all the other towns is to be continually decreasing from census to census, 
 with the increase of the mean numerical ratio ; in other words, that the relative 
 representative power of the small towns, already enormous, is to be increased with 
 each successive census.
 
 274 THE HOUSE OF REPRESENTATIVES. 
 
 is now ; while that of all towns entitled to send two or more 
 representatives every year is, by the same Constitution, to be 
 abridged at every new census. How does the case of such 
 small corporations as have been mentioned differ from that qf 
 Gatton and Old Sarum ? New Ashford has only one tenth 
 of the number of inhabitants that constituted the rule by which 
 the English Reform Bill of 1831 disfranchised sixty boroughs 
 at a blow. In 1843, the single vote of the representative from 
 Montgomery, a town of 650 inhabitants, was enough to de- 
 termine the character of the government for the year, includ- 
 ing the Senate and the Executive. Hull, I think, has not 
 generally thrown more than twelve or fourteen votes. Call 
 the average twenty. A majority of twenty is eleven. At this 
 rate, by the proposed Constitution, eleven votes will give a 
 seat in the House six years out of ten. It is needless to pur- 
 sue the reflections which such facts suggest. 
 
 The right of the small towns to a representative in each, or 
 each alternate year, is, let it be remembered, the only part of 
 the system which is to remain stationary, while (by the appli- 
 cation of the mean increasing number, which is to be enlarged 
 with the enlarging population of the Commonwealth) the rep- 
 resentative power of the inhabitants of all but that least popu- 
 lous class of towns is to be continually lessened. The propor- 
 tion is to be changed every ten years in favor of the towns of 
 the smallest size (those which have now less than 4,000 inhab- 
 itants), and against all others; thus vastly aggravating an evil 
 and injustice which must be owned partially to exist in the 
 present system. That, by the proposed Constitution, they will 
 be thus aggravated, is just as clear and certain as the evidence 
 of figures. When we hear it said that the proposed Constitu- 
 tion is better than the present in this respect, it is not that 
 there is any disagreement about such facts as have now been 
 brought to view. There can be none. It is a disagreement 
 about what is better and what is worse. The present Consti- 
 tution operates to reduce, from time to time, by a uniform 
 rule, the representative power of the respective towns as based 
 upon the present population. The proposed Constitution 
 secures to a larger number of towns a frequent or annual rep- 
 resentation ; and this is what by some is called an improve-
 
 THE HOUSE OF REPRESENTATIVES. 275 
 
 ment. But it does so by a greatly increased violation of the 
 principle of equal representation ; and this is what others call 
 the reverse of an improvement. 
 
 I do not enter into the calculations which show how small 
 a minority of the people may, under the proposed system, 
 command the House of Representatives. The people are 
 ciphering over these sums pretty busily, and getting more and 
 more astonished at the answers they work out. There is an- 
 other view of the subject which deserves a passing notice. 
 
 The doctrine of the Revolution was, that taxation and 
 representation must go together. It was founded on the much 
 more ancient English doctrine, that nobody but the subject, 
 directly or by his representative, had a right to dispose of the 
 subject's money ; and that then only would a proper economy 
 be practised, when the grantors of a tax were also the payers. 
 Accordingly, a tax in England is a grant of the Commons to 
 the Crown or Executive ; and all money-bills must originate 
 in the Lower House, a provision which we have copied. 
 
 In our Constitution of 1780, there were arrangements for 
 the basis of the Senate, specially designed to protect property. 
 The number of Senators to which the districts respectively 
 were entitled had reference to "the proportion of the public 
 taxes paid by the said districts " ; and this discrimination in 
 favor of property was not disturbed by the proposed amend- 
 ments of the Convention of 1820. It was, however, abolished 
 by the amendment which went into effect in 1840 ; and the 
 Senate, like the House, was placed upon a numerical basis. 
 
 But if there ought to be no discrimination in favor of prop- 
 erty, is it for the public good that there should be a discrimi- 
 nation against it ? Are rich men or rich towns, not only to 
 have no more discretion in the public disposal of their own 
 means than others who have little or nothing to bestow, but 
 are they to have much less discretion in the matter ? Are the 
 possessors of the money which the public wants to have much 
 the least voice man for man and town for town in the 
 disposal of it? Is this justice ? Is it policy ? 
 
 The smaller towns are the poorer towns ; poorer, relatively 
 to their population. But the smaller towns, by the proposed 
 Constitution, are to have at once a much greater power over
 
 276 THE HOUE OF REPRESENTATIVES. 
 
 the public purse than the large towns, relatively to their pop- 
 ulation ; and that larger power is still further to be increased 
 at each successive census. For instance : the valuation of 
 New Bedford in 1850 was $ 14,489,266 ; that of Hull was 
 $ 117,823. New Bedford, by the proposed Constitution, would 
 have fifty representatives in ten years ; Hull would have six. 
 New Bedford has 16,441 inhabitants ; Hull has 262. A citi- 
 zen of Hull has more than six times as much power in taxing 
 New Bedford as belongs to a citizen of New Bedford ; and 
 this while the average property to be levied upon is in New 
 Bedford more than $ 880 to a man, while in Hull it is less 
 than $ 450. 
 
 Nor is even this the widest departure in the new plan from 
 the time-hallowed principle that representation and taxation 
 go together. From the beginning of things, it has been the 
 rule in Massachusets that the payment of some tax (the low- 
 est tax being only a fraction of a dollar) should be held as a 
 condition of the right to vote. All this is abolished, as to 
 voting in State elections, under the first article of Chapter IX. 
 of the proposed Constitution. A man who pays nothing to 
 the public is to have as much power (or, as in cases like that 
 above mentioned, much more power) in levying contributions 
 for the public service, as those whose contribution is to be 
 largest. His own pocket is not to be at all touched, when he 
 makes any amount of draft upon his neighbor's earnings. 
 The Convention did not hold this to be equitable or politic in 
 respect to voters on town affairs. They considered the strong 
 disinclination that would be felt by the industrious people of 
 the towns to having their money voted away in town-meeting 
 by those who made no contribution whatever to the common 
 stock. And therefore they refused to make that application 
 of the principle. But they propose it for our adoption in re- 
 spect to the election of those who are to administer upon the 
 people's money in the General Court. 
 
 So the case stands thus. Formerly there was in the Senate 
 a discrimination in favor of property, while the basis of the 
 House of Representatives was population. The discrimina- 
 tion in favor of property was done away with, some years ago, 
 for the Senate ; while, in the House, a strong discrimination
 
 THE HOUSE OF REPRESENTATIVES. 277 
 
 against property is to be rendered permanent by the new Con- 
 stitution, and to be extended every ten years. 
 
 The only way to attain a near approach to an equality of 
 right in representation, is by a district system, dividing the 
 large towns and aggregating the small. The small towns do 
 not like to be debarred from representation in their corporate 
 capacity ; and their objection has been yielded to, to the utter 
 abandonment of the principle of equality. On the other hand, 
 the proposed Constitution districts the cities, depriving them 
 of their privilege, hitherto enjoyed, of representation as corpo- 
 rations. Is this equitable ? If the new system be good for 
 one party, is it not good for the other ? 
 
 By an article of the proposed Constitution (Chap. XIV. 
 Art. 4), it is provided that the Legislature of the year 1856 
 shall district the Commonwealth for Representatives as well 
 as Senators, and submit their plan to the people, to become a 
 part of the Constitution if confirmed by the popular vote. As 
 this article cannot prevail except along with the rest of the 
 Constitution, it is much relied upon to propitiate to the instru- 
 ment those who are the most opposed to that scheme of rep- 
 resentation which it proposes for immediate adoption : to them 
 the hope is held out of getting through it ultimately to the 
 district system. I cannot but look upon that hope as utterly 
 illusory. It is true that the provision makes it incumbent 
 upon the Legislature of 1856 to pass a law presenting that 
 scheme for the people's action. But the only way to pass it, 
 is for the two Houses to agree. And what power can compel 
 them to agree upon an act, which, from its nature, must go 
 into much detail, involving a great variety of compromises, 
 and into which has been introduced the option of " single or 
 double districts," as if purposely for an element of discord ? 
 Into the House of Representatives of 1856, towns having less 
 than one third of the population of the Commonwealth may 
 throw a majority of fifty. Is it to be expected that a House 
 so composed will pass such a districting bill as will have a 
 fair chance for concurrence by the Senate, based, as that body 
 is to be, on population ? Reasoning on the common princi- 
 ples of human nature, is there much reason for confidence that 
 the project will not be strangled in such hands? And if, in 
 25
 
 278 THE HOUSE OF REPRESENTATIVES. 
 
 any way, the system of districting falls through, that year, 
 then the old system remains as the permanent arrangement ; 
 for the duty of proposing the district system to the people is 
 limited by the Article to the Legislature of the year 1856. 
 
 Again : a person may be in favor of a districting system, 
 and yet not of just such a one as the Article in question de- 
 scribes, and which alone it provides for. That Article directs 
 that the districts shall be " as nearly equal as may be in the 
 number of qualified voters resident in each," making the very 
 material substitution of qualified voters for inhabitants. More- 
 over, a person may be in favor of the district system, without 
 wishing to apply its principles with so much rigor as is pro- 
 posed, where the districts are required to be " as nearly equal 
 as may be." Mr. Dana made an exceedingly able speech in 
 the Convention against the district system. Many, of whom 
 I profess to be one, are much impressed by his remarks on 
 the necessity of protecting the Commonwealth against cer- 
 tain dangerous influences in the great cities, without, how- 
 ever, being able to see that we should be justified in giving 
 such an immense preponderance of power to the small towns 
 as is proposed by the new Constitution. We are of the opin- 
 ion, that in those crowded marts and thoroughfares an unpa- 
 triotic and hurtful policy has prevailed and prevails, and too 
 probably will continue to prevail, by force of essential elements 
 in the constitution of society in such places. At all events, 
 such local accumulations of political power and influence as 
 are involved in the strictly equal representation of dense 
 masses of population, even when they should be broken up 
 into city districts, seem to us not consistent with the public 
 security. In his reply to Mr. Dana, Mr. Hillard very properly 
 said, that he was willing " to yield something of the numer- 
 ical proportion to which Boston was entitled " ; and admitted 
 that he should not expect Boston, with about a hundred and 
 forty-four times as many inhabitants as Hatfield, and, at the 
 same time, " with its larger proportion of the worthless classes, 
 and larger proportion of the dangerous classes," to be clothed 
 with a hundred and forty-four times as much representative 
 power as Hatfield. A district system which should do this, is 
 practically out of the question. Yet precisely such a district
 
 THE HOUSE OF REPRESENTATIVES. 279 
 
 system as should do this that system, and no other is, 
 by the proposed Constitution, to be offered to the people by 
 the Legislature of 1856. Of course, it would be defeated, 
 and there would be an end of the scheme of districting, so far 
 as it has a semblance of being befriended by a contingent 
 provision of the proposed Constitution. It is no essential 
 feature of a district system, that the districts should be strictly 
 " as nearly equal as may be," if the public good, as made 
 manifest in other considerations, should require some partial 
 departure from that principle. Our first Constitution gave 
 one Representative to every hundred and fifty ratable polls, 
 but required three hundred and seventy-five for two ; and a dis- 
 crimination of this nature, with a different ratio, still prevails. 
 A similar sliding scale, with a ratio of increase not excessive, 
 but sufficient for the common protection, might be applied to 
 the great masses of population, as a feature of a districting 
 system. But the prospective constitutional provision ex- 
 cludes every such arrangement. It presents the district sys- 
 tem in what is very generally regarded as an ineligible form, 
 and permits its adoption in no other. It is so worded as to 
 insure defeat. 
 
 We constantly hear it said, that, under the present system, 
 some of the small towns are " disfranchised," and more and 
 more will be every ten years. Nothing can be further from 
 the truth. The small towns may, every one of them, vote for 
 a Representative every year under the existing Constitution. 
 They have only enough of them to make a certain aggre- 
 gate of population to associate themselves for that purpose, 
 and they never need be without their Representative. If they 
 are ever " disfranchised," it is by a voluntary waiver of a right 
 which the existing Constitution secures to them. 
 
 Nor will the proposed Constitution do away with this " dis- 
 franchisement." Still, every town of less than 1,000 inhabit- 
 ants will be "disfranchised" four years in ten. While, should 
 the present Constitution continue in force, the evil which is 
 complained of, as being created by it, would have a tendency 
 to repair itself. It may well be supposed, that one reason 
 why towns too small to be represented every year have not 
 availed themselves, to a greater extent, of that constitutional
 
 280 THE HOUSE OF REPRESENTATIVES. 
 
 provision which allows them to associate together for the an- 
 nual election of a Representative, is, that, being as yet few in 
 number, they are comparatively remote and scattered. As 
 the number increases with the decennial increase of the mean 
 ratio, there will of course be more of them contiguous to each 
 other; and, as the inconvenience of association is lessened by 
 this cause, it is natural to suppose that the dislike to it may 
 abate, and thus what is virtually a voluntary district system 
 be gradually introduced. 
 
 I do not defend the representative system of the present 
 Constitution. Far from it. It is bad. But I will not, be- 
 cause it is bad, vote to substitute another, which is worse than 
 itself in its worst features ; and when, still further, in order to 
 make the substitution, I must vote at the same time for other 
 provisions very important in my view, and very mischievous. 
 I believe a districting system for the choice of Representatives 
 is, on the whole, what justice and expediency require. But I 
 do not esteem that system, which alone is contemplated in the 
 prospective provision of the amended Constitution, to be 
 either a correct or a practicable one ; if ever so eligible, I have 
 nothing which can be called a reasonable hope of attaining it 
 in the manner proposed ; and if entirely eligible and attain- 
 able in the manner proposed, I could not purchase it at the 
 price which is demanded, of assent to other provisions of the 
 same instrument. 
 
 The true course under such circumstances seems to be, to 
 refuse to help in making things worse, and await a favorable 
 time for making them better. Just as no treaty between na- 
 tions is a good one, which leaves to either party occasions for 
 future discontent and disturbance, so no Constitution can be 
 a good one, which bears with oppressive weight on a large 
 portion of the people, especially on the major number of them. 
 A temporary majority may perhaps carry this Constitution. 
 But majorities change, and that Constitution which is too un- 
 equal in its distributions of power cannot give permanent 
 satisfaction or tranquillity. There is too much reason to fear, 
 that, smarting under such injustice, a majority may some time 
 feel entitled to right itself, even by disturbances such as, not 
 long ago, were witnessed in Rhode Island.
 
 THE JUDICIARY. 281 
 
 IV. 
 
 THE JUDICIARY. 
 
 HITHERTO the tenure of the judicial office in Massachusetts 
 has been for good beha'viour. " It is the right of every cit- 
 izen," says Article XXIX. of the Bill of Rights of 1780, un- 
 altered till now, " to be tried by judges as free, impartial, and 
 independent as the lot of humanity will admit. It is, there- 
 fore, not only the best policy, but for the security of the rights 
 of the people and of every citizen, that the Judges of the Su- 
 preme Judicial Court should hold their offices as long as they 
 behave themselves well," &c. This the Convention of 1853 
 proposes to alter so as to read in the following manner: "It 
 is the right of every citizen to be tried by judges as free, impar- 
 tial, and independent as the lot of humanity will admit. It is, 
 therefore, not only the best policy, but for the security of the 
 rights of the people and of every citizen, that the Judges of 
 the Supreme Judicial Court should hold their offices by ten- 
 ures established by the Constitution," &c. And then it goes on 
 to provide, in Chapter VIIL, that Judges of the Supreme Court 
 hereafter to be appointed, and also Judges of the Court of 
 Common Pleas, as long as the law establishing that Court 
 remains in force, shall hold their offices for ten years ; at the 
 end of which time, the Governor and Council may reappoint 
 or supersede them at pleasure. 
 
 This measure has undeniably taken the people by surprise. 
 In the speeches and other appeals of the different parties, 
 while the measure of holding a Convention was pending, no 
 plan of the kind was so much as suggested. Neither party 
 expressed an intention to make any change in the judiciary 
 system. By some of the leading men who had promoted the 
 Convention, it was admitted, in the debate upon the subject 
 in that body, that, if a design to make the Judiciary elective 
 had been avowed, the proposal to hold a Convention would 
 probably not have been sustained by the people ; and in 
 respect to any change in the term of judicial service, or the 
 25*
 
 282 THE JUDICIARY. 
 
 manner of appointment, an equally cautious silence was pre- 
 served. 
 
 There is no more peremptory lesson of history, no better 
 established doctrine of political science, than this : that, for 
 free governments to be sustained and do their office, it is es- 
 sential that the three departments be kept distinct. The exec- 
 utive must not be at the mercy of the judicial or legislative ; 
 nor the legislative at that of the judicial or executive ; nor the 
 judicial at that of the executive or legislative. 
 
 But this great lesson of the ages it is now proposed so far 
 to set aside. There are six Judges of the Supreme Court. 
 Oftener than once in two years, a vacancy on that bench is to 
 be created by the new Constitution. Reckoning deaths and 
 resignations, vacancies will occur nearer to once in every year 
 than to once in two years. Not much less frequently than 
 every year, it is to be in the power of the Governor, or of the 
 Governor's party friends, to say to one sixth of the Court, 
 that, unless they decide questions so as to suit the powers 
 that be, one sixth of the Court shall presently be displaced. 
 Every succeeding year or two years will bring up another to 
 pass the same ordeal. What independence, what dignity, 
 what weight, can there be in the character of a judge under 
 such circumstances ? 
 
 A Judge of the Supreme Court has come to be fifty or six- 
 ty years old. He has a family dependent on his earnings. 
 He has been away from the bar ten or twenty years, and has 
 changed his habits and parted from his clients. His period of 
 official service is before long to expire. It is presently to be in 
 the Governor's power to continue to him the means of comfort- 
 able living, or reduce him to poverty and shifts. On the com- 
 mon principles of human nature, how is it possible to say 
 that a judge so situated is not under a dangerous influence so 
 to act as that he may stand well with the Governor and the 
 Governor's backers ? Take such a case as that of the old 
 Charlestown Bridge. Such cases may occur over and over 
 again. On that occasion, strong feelings and interests, on 
 the part of great numbers, were arrayed against what others 
 considered to be private rights. No matter, for the present 
 argument, which side was right and which was wrong. It
 
 THE JUDICIARY. 283 
 
 was doubtless for the interest of the public, in the long run, 
 that justice should be done, wherever it might strike. Yet 
 who can say, that, supposing the weaker party in that in- 
 stance to have had justice on their side, they would have had 
 a fair chance of getting it, if, within some greater or less frac- 
 tion of ten years, every Judge of that Court was to retain or 
 lose his place according to the chances of a Governor's elec- 
 tion ? There is no more appropriate business of courts of 
 justice than to protect the rights of the weak and few against 
 the usurpations of the strong and many; and it is impossible 
 for them to do this, unless they are strong and independent 
 themselves. Every man of a domineering majority may in 
 time come to want that protection for himself, through an in- 
 dependent judiciary, which, in the pride and insolence of his 
 party strength, he grudged to others. Who would like to see 
 the judge who is to pass between him and his neighbor dan- 
 cing attendance in the Governor's antechamber, as the expira- 
 tion of his ten years draws nigh, and watching the signs of 
 the times to know on what terms a re-nomination may be 
 had ? Who wants to see the judges calculating the chances 
 of the political parties as a November election approaches, 
 and musing on the prospect of being provided for or impover- 
 ished according as they decide questions before them this way 
 or that ? For our judges we must take men, imperfect men : 
 that we cannot help. The most we can do is to take the best 
 bonds for their integrity which we can get : first, from the up- 
 right character which we discern in them ; secondly, from the 
 safe and independent position in which we place them. Who 
 can pretend, that, if tried by a judge liable to be retained or 
 displaced at a not distant time, according as he decides one or 
 another case, he enjoys his right " to be tried by judges as 
 free, impartial, and independent as .the lot of humanity will 
 admit"? The advocates of the proposed Constitution talk of 
 restricting the patronage of the Executive. But what a tre- 
 mendous extension .of its patronage is that which lays the 
 Judiciary at its feet ! 
 
 There is no question, in any quarter, about the right of the 
 people to appoint and remove judges, as well as other magis- 
 trates, at their pleasure. The only question is, how can the
 
 284 THE JUDICIARY. 
 
 people exercise their undisputed power in this respect, so as 
 to secure for themselves the most faithful and able discharge 
 of the duties of the judicial office ? 
 
 What sort of men is it for the public interest, and for every 
 individual's interest, that we should have for judges ? With- 
 out doubt, men of talents, learning, and character ; and a rare 
 succession of such men we have been fortunate enough to 
 secure under the old system ; though, from the very moderate 
 income of judges, compared with that of eminent practition- 
 ers at the bar, it has often been found difficult to induce the 
 proper man to take a vacant seat upon the bench. The great 
 attractions of the place, which have induced the best men to 
 accept it, to the sacrifice of other considerations, have been 
 its independence, security, and seclusion from party clamor. 
 These attractions we propose now to divest it of ; and, when 
 they are taken away, how can we hope any longer to enlist 
 the highest character and talent in judicial service ? Nothing 
 in the future is more certain, than that we shall thenceforward 
 see upon the bench men altogether inferior to those who have 
 heretofore adorned it. The men whom we most want for the 
 place will not look at it under such circumstances ; there is 
 no reason why they should, and all personal reasons to the 
 contrary ; and it will sink more and more into the condition 
 of a prize for active partisans, claiming it as their share of 
 the spoils after some hotly contested election. The court will 
 become inferior to the bar, a state of things in which there 
 can be no safe administration of the law ; uneasiness, dis- 
 trust, discontent, will take the place of the confidence which 
 has hitherto been felt in the intelligence and uprightness of 
 the tribunals ; the judicial decisions of Massachusetts will 
 sink everywhere from the high estimation in which they have 
 been held. In short, it is simply impossible, that, with the 
 proposed change, our administration of justice should be as 
 able and impartial as it has been. 
 
 But it is argued that we ought to have some method of 
 relief from incompetent and unfaithful judges. No doubt we 
 ought ; and we have it already in perfection. Passing by the 
 process of impeachment, nothing can be easier nor more sum- 
 mary than that procedure provided by the present Constitu-
 
 THE JUDICIARY. 285 
 
 tion, of removal by address of the two Houses to the Gov- 
 ernor. It is a prompt, efficient, infallible remedy for every 
 case that can be supposed of general dissatisfaction. In its 
 practical operation, it goes far to insure the object of delicacy, 
 professed to be aimed at by the proposed new provision ; viz. 
 the retirement "to private life, without violence or ungracious 
 circumstances, and scarcely with observation." For it can 
 hardly happen that, when the public dissatisfaction becomes 
 so manifest as to threaten the removal of a judge by address, 
 his own feelings, or the interference of his friends, will not 
 lead him to anticipate that step by a voluntary resignation. 
 If it could ever happen, it would be only in a case of a judge 
 who was so confident of the correctness of his course that he 
 would stand by it to the last, defy the consequences, and, by 
 giving the greatest possible solemnity and publicity to the 
 issue made, throw himself on the judgment of posterity. 
 And that is just the kind of judge that it concerns the public 
 not to part with, on any terms. 
 
 Some of the judicial offices the new Constitution proposes 
 to fill by local elections once in three years, instead of by ap- 
 pointment by the Commonwealth's authority, as heretofore. 
 Such are the offices of Judges of Probate, Police Justices, and 
 Trial Justices (Chap. VII. Art. 4; VIII. Art 7, 8). 
 
 The objections to this innovation are very weighty. In 
 rich counties, where large sums of money pass under the 
 jurisdiction of Judges of Probate every year, including not 
 only executors' and administrators', but guardians' and trus- 
 tees' accounts, they will have been diligent if they have 
 learned their business well at the end of the first three years. 
 Change them every three years (which is but too likely to 
 come to pass if the places are thrown into the party scramble), 
 and we shall never have a first-rate Judge of Probate for any 
 fraction of the time. Judges of Probate stand between wid- 
 ows and orphans on the one hand, and those who have the 
 custody of their estates on the other. Widows and orphans 
 are protected by the correct accounts and sufficient bonds of 
 executors, guardians, and trustees. The Judge of Probate 
 has the cognizance and regulation of those accounts and 
 bonds. Guardians and trustees are often of that class of solid
 
 286 THE JUDICIARY. 
 
 men, who have great weight in party operations. When I 
 want the accounts of an estate in which I am interested 
 strictly sifted, and the bonds put properly high, it will be a 
 subject of uneasiness and regret to me if the Judge of Probate 
 is presently to be elected in a county in which my trustees 
 are influential men in the Conventions. There was lately in 
 Norfolk a question of guardianship, which excited strong and 
 general interest. I know nothing of its circumstances, except 
 that one, at least, of the parties to the discussion was a gen- 
 tleman of deservedly great political influence in the county. 
 It is a thing infinitely to be deprecated, that the administra- 
 tion of justice in so interesting a department should be ex- 
 posed to such a peril as would arise from the influence of in- 
 terested parties over local elections. 
 
 So of Commissioners of Insolvency, a class of officers ex- 
 ercising very important quasi-judicial functions. They, too, 
 are to be elected in the respective counties once in three years 
 (Chap. VII. Art. 4). Among the many classes of citizens, 
 there is probably no one, which, in proportion to its numbers, 
 furnishes more of the active politicians, or acts a busier or 
 more influential part in the primary and nominating Conven- 
 tions, than that of insolvents. Is it for the interest of the 
 public at large that the nomination of these officers should be 
 liable to be in their hands. Will a person who holds an in- 
 solvent's note think that this arrangement will tend to in- 
 crease its value, or the contrary ? 
 
 The administration of justice ought to be uniform through- 
 out the Commonwealth. One way of securing this is to 
 have the administrators of justice, in every part of the juris- 
 diction, appointed, not by any local authority, but by the au- 
 thority of the Commonwealth. And this is the method which 
 has been hitherto strictly observed, but which it is now pro- 
 posed to change. Cities elect their Mayors and Aldermen, 
 because Mayors and Aldermen are to carry into effect the 
 charter provisions and by-laws of the cities respectively. But 
 Massachusetts as yet appoints judicial officers in all her cities, 
 because her laws are to have effect alike in all those cities. 
 It is her business that those magistrates are to do, and not 
 that of the municipal corporations. If I am a citizen of Rox-
 
 THE JUDICIARY. 287 
 
 bury in Norfolk, it interests me about as much to have crimi- 
 nal law rightly administered in Boston in Suffolk, as it inter- 
 ests a citizen of Boston itself. At all events, Massachusetts, 
 which is a body politic, cannot wisely or safely leave her cities 
 to their own judicial administration, any more than she can 
 leave them to their own legislation. Think of Boston choos- 
 ing a Police Justice on an average once a year, and the pro 
 and anti Maine Law parties, the pro and anti lottery, the pro 
 and anti hack-regulation parties, and so on, which would be 
 struggling for the possession of him. The Recorder's Court 
 in the city of New York is a criminal court. He sits with 
 two of the Aldermen, chosen at the annual charter election. 
 If report says true, a serviceable partisan of the Aldermen 
 who made two thirds of the Court, having been convicted re- 
 cently on a criminal charge, the Aldermen prevented his being 
 sentenced, by absenting themselves from the bench. It is im- 
 possible to be at the trouble of ascertaining the truth of such 
 a story. But it seems too probable not to be true. At all 
 events, the general likelihood of a perversion of justice under 
 the like circumstances is so great, and so serious, as to make 
 the proposed change appear to the last degree ineligible. 
 Hitherto, in every part of her dominion, Massachusetts has 
 administered her laws by her own agents. Her people have 
 meant to hold their whip over evil-doers, just the same in 
 Suffolk as in Berkshire. She will consult for her security and 
 good order as little as for her dignity, when, in so important 
 a department as that of the jurisdiction of Police and Trial 
 Justices, she exposes her judicial administration to the influ- 
 ence of local interests and excitements. 
 
 In respect to the Clerks of Courts, what interest have the 
 public ? Clearly this very material one : that the business of 
 the courts, so far as depends on the recording and correspond- 
 ing officers, shall be promptly, diligently, and correctly done. 
 How may that interest best be secured ? Apparently by the 
 method, hitherto pursued, of allowing the courts to appoint 
 aad remove their own clerks, and so to hold them to a direct 
 and strict accountability. If a clerk is incompetent or remiss, 
 we, the people, are in no position to know of it, except at 
 secondhand; and then we may be doubtful or divided about
 
 288 THE EXECUTIVE. 
 
 it. The court know it at once, because it interferes with the 
 regular going of their machinery. Their personal conven- 
 ience and credit are deeply concerned in having the business 
 of the clerk's office well and thoroughly done ; and they are 
 the persons who will immediately and certainly know wheth- 
 er it is so done. It is evidently and eminently for the public 
 advantage, then, that they should be charged with seeing it 
 done, and accordingly with designating the persons to do it. 
 To make these offices elective in the counties, as is now pro- 
 posed (Chap. VII. Art. 4), would be just as much out of the 
 safe and regular course of business, as it would be for the 
 Secretary of the Senate, or the Clerk of the House, to be cho- 
 sen by general ticket, or for the stockholders in a bank to ap- 
 point and remove the book-keepers and tellers. To subject 
 the clerkships to election in the counties, is to throw so many 
 more prizes into the heap to be fought for by county dema- 
 gogues ; but it is not a measure for the advantage of us who 
 have, or may have, business in the courts. 
 
 V. 
 
 THE EXECUTIVE. 
 
 IN respect to the Chief Executive, the new Constitution 
 quietly makes one change of no inconsiderable moment, 
 though it is so put away in another place, and wrapped up in 
 a mass of other things, without the usual italics to call atten- 
 tion to it, that it may escape observation. In case of a failure 
 of popular election of the Governor or Lieutenant-Governor, 
 the old Constitution provides that the House of Representa- 
 tives shall select two names from the four having the largest 
 number of votes ; from which two, the Senate is to designate 
 one for the vacant office. In other words, the old Constitu- 
 tion allows such a latitude of choice, as that there may be 
 four parties entitled to have their claims considered in this 
 kind of election, and to have their share in the compromise 
 which such a case may make necessary. The new Constitu- 
 tion changes this, and provides (Chap. IX. Art. 5) that, for
 
 THE EXECUTIVE. 289 
 
 the choice of Governor, Lieutenant-Governor, and other high 
 executive officers, three parties, and no more, shall hencefor- 
 ward be recognized in Massachusetts. We have at present, 
 in Massachusetts, three large and well-organized parties ; so 
 that the proposed monopoly in three parties may seem to 
 have a suitableness to the immediate state of things, and to 
 the satisfaction of the managers of those parties. But per- 
 haps there is, or may be, some other party which may aspire 
 to be fourth in numbers; as some Old Line Democratic par- 
 ty, some Maine Law party, or some Hoosac Tunnel party. 
 And would such a party feel that justice was done it by the 
 proposed exclusion ? The fourth party might be nearly equal 
 in numbers to the third, and it might be more in unison than 
 the third with the first, or with the second. Would not such 
 a state of things, should it occur, create a wish that the old 
 constitutional provision was still in force, with its larger lib- 
 erty of choice ? The proposed provision looks like a blow 
 aimed in the dark at the existence of a fourth party. 
 
 When the first case occurred of the succession of a Vice- 
 President to the Supreme Magistracy of the Union, and the 
 'Cabinet wished to get hold of Mr. Tyler by his weak side, 
 they caused him to call himself, and be called, " President of 
 the United States." This hardly seemed accordant with the 
 language of the Constitution. But it pleased at least one 
 person, and it harmed nobody ; so it met with general acqui- 
 escence, and went into precedent. In respect to the Lieuten- 
 ant-Governor of Massachusetts, the old. Constitution provides, 
 that, in case of the vacancy of the Governor's chair, "the Lieu- 
 tenant-Governor for the time being shall, during such vacancy, 
 perform all the duties incumbent upon the Governor," &c. ; 
 and, accordingly, Gill, Lincoln, Armstrong, &c. styled them- 
 selves " Lieutenant-Governor and Commander-in-Chief." The 
 proposed Constitution provides that, " whenever the chair of 
 the Governor shall be vacant, &c., the Lieutenant-Governor 
 shall be Governor of the Commonwealth" It plucks away a 
 feather from his present pomp, but it offers him a contingent 
 dignity instead. It forbids him to be saluted any longer as 
 " his Honor," but it indemnifies him with a " Hail ! King that 
 shalt be! " The improvement may seern to be scarcely worth 
 26
 
 290 THE EXECUTIVE. 
 
 changing the Constitution for ; but there is no harm in it, and 
 it may be agreeable to persons who have the office in contem- 
 plation. If it should be thought trifling, it is as innocent 
 trifling as could be wished. 
 
 In respect to the position of this officer, there is another 
 change, which also is not indicated by any difference in the 
 type. By the existing Constitution, the Lieutenant-Governor 
 is to perform all the duties of the Governor " whenever the 
 chair of the Governor shall be vacant, by reason of his death, 
 or absence from the Commonwealth, or otherwise." This is 
 definite. The proposed provision is not equally so. It is 
 (Chap. V. Art. 3), that, "whenever, by reason of sickness, or 
 absence from the Commonwealth, or otherwise, the Governor 
 shall be unable to perform his official duties, the Lieutenant- 
 Governor, for the time being, shall have and excercise all the 
 powers and authorities and perform all the duties of Gov- 
 ernor." What degree or duration of inability in the Governor, 
 from a headache or a broken right-arm to an apoplexy, shall 
 authorize the Lieutenant-Governor to assume his superior's 
 functions ? The Governor may be able to do some official 
 things, and not others. He may be able to sign a commis- 
 sion, but not to meet his Council. Who is to be Chief Mag- 
 istrate then ? It is not difficult to imagine cases of possible 
 dispute as to the authority of that signature which binds infe- 
 rior officers. " Under which king, Bezonian?" John Adams 
 knew better what language was fit to be used for such a case, 
 than the experimenters upon this part of the State Constitu- 
 tion. 
 
 The change in the constitution of the Executive Council, 
 making its members to be eight in number instead of nine, 
 and to be eligible by a plurality of votes in single districts, 
 instead of by the Legislature, as heretofore, is in some respects 
 an improvement ; though causing, as it will, the party of the 
 Governor's opponents to be represented in his Council (an 
 arrangement certainly not without its benefits), it may some- 
 times tend to lessen his responsibility, by giving to that body 
 something of the character of an Executive Directory. At all 
 events, it is not an improvement of that urgent importance 
 that it is worth while to obtain it next year at a great sacrifice
 
 THE EXECUTIVE. 291 
 
 in other things, instead of obtaining it the year after at no sac- 
 rifice at all. We can have it in 1854 by adopting the pro- 
 posed Constitution, with all its exceptionable features. We 
 can have it in 1855, as ah independent measure, by the suc- 
 cessive votes of two Legislatures and of the people. As there 
 was next to no opposition to it in the Convention, there 
 appears no reason to apprehend serious opposition to it in any 
 quarter. When all parties are substantially of one consent 
 about a thing, and it may be had for nothing, it cannot be 
 wise to get it at a high price. 
 
 There is one proposed change in the executive department, 
 of far more material importance. Massachusetts has intended 
 to have her laws efficiently and uniformly executed in every 
 part of her territory. And, to that end, she has taken care her- 
 self, by her highest delegated appointing power, her Governor 
 and Executive Council, to appoint her highest executive 
 officers respectively in all and each of her counties. All this, 
 it is proposed henceforward to do away. The counties are 
 severally to elect their own Sheriffs (Chap. VII. Art. 4), and 
 by that election to determine how much and how little of the 
 law of the Commonwealth shall be executed within their 
 bounds. Dukes County may not like the pilot laws of Mas- 
 sachusetts. Suffolk County may not like the liquor laws of 
 Massachusetts. Of course they choose their Sheriffs, when 
 they get the power, with a view to nullify those laws in re- 
 spect to themselves ; for when and where the executive power 
 fails, the law is a dead letter. Massachusetts has now a heavy 
 hand, which on occasion she can make felt in any part of her 
 domain. Make the change proposed, and we disarm her at 
 once in any contumacious county. As the Constitution now 
 stands, if a Sheriff of Suffolk, in supposed deference to a Bos- 
 ton interest, refuses to serve process under any Sims case, or 
 the like, or to make a seizure under the Liquor Law, he stands 
 a chance of being dismissed immediately and finally by the 
 Governor, the representative, for such purposes, of the State's 
 sovereignty. Make the Sheriff the officer, not of the Common- 
 wealth, but of the county, and it will be the county's will, 
 rather than the Commonwealth's, which he may feel concerned 
 to execute. The population of Boston is not worse than that
 
 292 THE EXECUTIVE. 
 
 of other great cities. It is much better than that of most 
 others. But it embraces elements such as cannot prudently 
 be trusted with control over the question, whether or not the 
 laws of Massachusetts shall be faithfully administered and 
 executed within it. To take an illustration from a sister 
 State, what chance of execution would a process for collecting 
 rent have in an anti-rent county, with the constitutional 
 power to choose its Sheriff? 
 
 So the efficient execution of the laws depends mainly on the 
 faithfulness of the prosecuting officers. If they will, they 
 shut their eyes to crimes and abuses ; and those crimes and 
 abuses the law then does not see, and does not punish nor 
 remedy. Under the existing provisions, the Commonwealth, 
 through her Governor and Council, appoints and removes at 
 pleasure the District Attorneys, and thus holds them strictly 
 responsible to herself for the due execution of the trust. It is 
 proposed henceforward to choose the District Attorneys by 
 vote of the districts respectively in which they are to act 
 (Chap. VII. Art. 4). The district which can choose its prose- 
 cuting officer will have rather more power than is consistent 
 with the general good, to determine what offences and what 
 persons shall be prosecuted within its limits ; and men who 
 have sway at nominating conventions may occasionally prove 
 to be invested with too much discretion over the question 
 whether they will themselves be prosecuted or not. 
 
 It is no reply to these remarks to say, that, by another pro- 
 vision (Chap. XIII. Art. 4, 5), prosecuting officers and sheriffs 
 may be removed or suspended by the Governor, and substi- 
 tutes appointed. The remedy is not adequate. The substi- 
 tute, on the proposed plan, can only hold office till the next 
 annual election. The county or district then re-elects the 
 faithless officer, or some other person who will equally serve 
 its purposes ; and by the time there has been again sufficient 
 malversation, and sufficient proof of it, to justify another 
 executive interference, great part of another year has gone, 
 carrying with it another long period of hurtful maladminis- 
 tration. And this is a process to be repeated endlessly, or as 
 long as the spirit of opposition in the county or district holds 
 out.
 
 MAJORITY OR PLURALITY. 293 
 
 The offices of Secretary of the Commonwealth, Treasurer, 
 and Auditor are by the new Constitution made elective by 
 the people directly (Chap. VII. Art. 1), instead of, as hitherto, 
 by the people through its Legislature. As a matter of con- 
 venience, this may be an improvement ; and if so, the change 
 would be easily made, and probably without opposition, as 
 an independent measure, by the method pointed out by the 
 existing Constitution : though one naturally asks why this 
 rule should not be made to apply to some other State officers, 
 as well as to those specified ; as, for instance, to the Land 
 officer, or to the Secretary and members of the Board of Edu- 
 cation. Even the office of Warden of the State Prison is, I 
 believe, made elective in some States, where it is intended to 
 give to the general State scramble the greatest possible com- 
 prehension and activity. 
 
 VI. 
 
 MISCELLANEOUS. 
 
 THE question whether more than half the votes given in 
 elections shall be required to fill an office, or whether a mere 
 plurality shall prevail, is one of material importance. The 
 former method is most consistent with the republican theory. 
 It may be reasonably argued, that no one should be held to be 
 elected, when there is a larger number of votes against than 
 for him, even though the majority against him should be an 
 aggregate of votes cast for different persons. But, on the 
 other hand, there may at any time be more than two parties, 
 each tenacious of its principles and candidates, and no one of 
 them more numerous than the sum of the rest. In that case 
 will occur the inconvenience of repeated fruitless trials to 
 elect; offices may remain vacant ; and it is even supposable 
 that the government shall be brought to a stand. 
 
 This class of considerations has led extensively to the intro- 
 duction of the plurality principle in the elections of other 
 States. Massachusetts has adhered steadfastly to the method 
 of electing by majority. Two years ago, the Legislature en- 
 26*
 
 294 
 
 MAJORITY OR PLURALITY. 
 
 acted that a plurality should choose electors of President and 
 Vice-President and (on the second trial) Representatives in 
 Congress ; there being, as to these matters, no provision in 
 the Constitution. But the Constitution and laws, down to 
 this day, recognize no election of state, county, or town 
 officers, except by a majority of all the votes. 
 
 It would seem that, however the Constitution should deter- 
 mine the main question, its arrangement should be uniform 
 and permanent. The existing constitutional and legal pro- 
 visions have both these qualities. That of the proposed Con- 
 stitution has neither. By the proposed provision (Chap. IX. 
 Art. 5, 6, 7), a plurality cannot, until further legislation, elect 
 the Governor nor other executive state officers, Representa- 
 tives to the General Court, nor town officers. In other 
 words, in these elections, when there are three powerful par- 
 ties, there must be a bargain between two of them to effect a 
 choice. But pluralities are to elect Councillors, Senators, and 
 county and district officers (Art. 8). The relation of this 
 twofold arrangement to the existing state of parties in this 
 Commonwealth, and to the compromises which have grown 
 out of that state of things, is apparent. But upon what con- 
 stitutional doctrine, or what demand of the public welfare, the 
 distinction is founded, and why the plurality rule has not 
 precisely the same applicability to all cases alike, is not so 
 obvious. 
 
 At all events, this might seem certain, that the great ques- 
 tion of majority or plurality elections is one to be settled in 
 some way by the Constitution, and not to be left to the 
 caprice and party calculations of successive Legislatures ; a 
 majority system to be enacted by one Legislature, and a plu- 
 rality system by the next, according as one or the other may 
 be thought best to subserve, for the moment, the purposes of 
 party. But the proposed Constitution expressly provides 
 (Chap. IX. Art. 5, 6, 7), that, in all cases in which majority 
 elections are still retained, it shall be competent to the Legis- 
 lature to substitute a plurality, and again to go back to a ma- 
 jority vote, at its pleasure. It is true that the provision is, 
 that a law of this description, so far as it relates to state offi- 
 cers, shall not take effect till a year has expired from the time
 
 SECRET BALLOT. 295 
 
 of its enactment. But party calculations are apt to look for- 
 ward beyond the term of twelve months. And, 1 further, if a 
 law on this subject cannot go into effect till after twelve 
 months, neither can its repeal do so. So that a party in power 
 is able to determine irrevocably, for its own uses, the principles 
 on which the elections for the second following year shall be 
 made. The people may be ever so much disgusted with a 
 wrong that has been done, and may send ever so strong a 
 representation to the General Court the next year to set it 
 right ; but to set it right is no longer in their power. The 
 Constitution precludes them from getting any remedy till 
 after the second year ; till after the time has passed to which 
 the corrupt legislation they desire to rebuke and repair was 
 contrived to apply. 
 
 The provision respecting Secret Ballot (Chap. IX. Art. 2) 
 recognizes a sound principle, and enforces an important prac- 
 tice. The gross abuses which have existed loudly demand 
 its adoption. It should have been presented as a separate 
 article, so that we could vote for it without at the same time 
 making great sacrifices in other respects. But the Secret 
 Ballot, in precisely the effective form proposed, is within our 
 reach by mere legislative enactment. Its reasonableness and 
 popularity are such, that it must presently be re-enacted, what- 
 ever party is in power ; and when re-enacted, it will stand firm. 
 The Whigs, it is true, repealed it last winter ; but they have 
 been sitting on the stool of repentance ever since. Nothing 
 did more than their foolish stand on that question, to throw 
 them into the miserable minority in which they appeared in 
 the Convention. They will not try it again. They will have 
 to yield the Secret Ballot by law, Constitution or no Consti- 
 tution. 
 
 The obligation of the General Court to receive pay for one 
 hundred days only (Chap. I. Art. 3) is interpreted as a virtual 
 prohibition to sit longer. In that view, it might be good, if 
 accompanied by a provision that no more business should 
 ever come before the Legislature than would be well and care- 
 fully done in that time. Some years ago, on account of some 
 alleged bequests to public charities, supposed to have been
 
 296 LIMITATION OF LEGISLATIVE SESSIONS. 
 
 wheedled out of legatees in the weakness of their last hours, 
 there was a proposition in the Legislature, that no will should 
 be admitted to probate, if made within six months of the 
 testators death. An amendment was moved of an additional 
 clause, providing that no man should die till six months after 
 making his will ; upon which the measure subsided. If the 
 business is left unfinished at the end of a hundred days, and 
 the Governor has to call an extra session to complete it, with 
 the cost of extra travel added to pay, there will be little 
 money saved. This case has actually occurred during the 
 present year in New York, under a constitutional provision 
 similar to that now proposed to be introduced among us. 
 
 If a limitation of the Legislature to sessions of a hundred 
 days be a good object, why not so provide in direct lan- 
 guage ? It would be the better and safer way. Who knows 
 that the stoppage of pay would in every case send the Legis- 
 lature home ? Suppose a different state of things. Suppose, 
 as the end of the hundred days approaches, a measure to be 
 pending, involving large pecuniary interests. The Senate 
 and House cannot agree about adjourning. Some members 
 hostile to the measure, but not able to work for nothing and 
 find themselves, ask leave of absence, and easily get it. 
 Others, favorable to it, are able at their own expense, or at the 
 expense of somebody behind the scene, to hold out and legis- 
 late some days longer. I can easily imagine cases in which I 
 should not think it for my advantage to have my representa- 
 tive starved away from his post. 
 
 As to the Militia, the subordination of the military to the 
 civil authority has always been held to be a necessity of our 
 institutions. It stands prominent in the Bill of Rights (Art. 
 17). One way which our ancestors took to secure it was by 
 giving the appointment of the Major- Generals to the people 
 assembled in their Legislature. It is now proposed to ex- 
 punge this feature of the militia organization, and to have an 
 armed force wholly officered by itself, with the exception of 
 the Commander-in-Chief (Chap. XI. Art. 5.) On the other 
 hand, soldierly honor is delicate, and some rather strong ex- 
 periments upon it are projected. Henceforward an officer is,
 
 MILITIA. 297 
 
 every three years, to have the continuance of his commission 
 subject to the vote of the inferior officers or the privates of 
 his command (Art. 11). It may be that offices in the militia, 
 on these terms, may continue to be attractive to men of char- 
 acter ; but I should not like to guarantee it. Suppose a com- 
 pany to be in actual service at the time when the captain's 
 commission is about to expire by limitation ; he will be under 
 the command of his men, instead of their being under his. 
 And so of the commanders of regiments, brigades, and divis- 
 ions, who are to have respectively inferior officers for their 
 constituents. The judicious arrangements of an expedition 
 or a campaign may be all frustrated by the advancement, at 
 the critical moment, of a new man over the head of their pro- 
 jector. And, when an ambitious subordinate may intrigue 
 with his command to supplant his superior, does it not follow 
 that the arm of military discipline will be very essentially 
 crippled ? 
 
 There is another change in the constitutional provisions re- 
 lating to the militia, of greater importance. The Constitution, 
 as it has stood from 1780 to 1853, after making the Governor 
 Commander-in-Chief "of all the military forces of the State, 
 by sea and land," goes on to provide that he shall never 
 "transport any of the inhabitants of this Commonwealth, or 
 oblige them to march out of the limits of the same, without 
 their free and voluntary consent, or the consent of the General 
 Court" The idea of those who framed this prohibition was, 
 that, when soldiers should be wanted for foreign wars, they 
 could be hired, and that the citizen was not to be forced away 
 from his home on such service ; that conscriptions, the odious 
 resort of military tyrannies, should not be permitted here. It 
 is now proposed to do away with this restriction, and to im- 
 pose no limit to the Governor's power over the militia, except 
 as implied in this, that the authority expressly given him goes 
 no further than " to call out any part of the military force to 
 aid in the execution of the laws, to suppress insurrection, and 
 to repel invasion." " To suppress insurrection." Where ? 
 In Florida ? " To repel invasion." Where ? In California ? 
 " To aid in the execution of the laws." Where ? At Trieste 
 and Venice, when we have quarrelled with Austria ? For
 
 298 
 
 HARVARD COLLEGE. 
 
 undoubtedly a declaration of war is a "law." The Constitu- 
 tion of the United States confers on Congress power over the 
 militia in these terms ; but it is in no such breadth of meaning, 
 nor does either that instrument, or the Constitution of Massa- 
 chusetts hitherto, confer it on the Governor. The proposed 
 alteration may be interpreted so as to invest that magistrate 
 with a terrible power. When the time shall come that a reck- 
 less partisan Governor, ambitious of a " national " name and 
 promotion, shall "call out" some Massachusetts regiments, 
 under the penalties of martial law, for an expedition to Nica- 
 ragua, the Sandwich Islands, or Japan, we may wish, when 
 it is too late, that we had the old constitutional security for 
 ourselves and our children. In all times, the power to compel 
 the service of the subject in distant wars has been held to be 
 one of the most intolerable attributes of despotism. 
 
 The proposed provision (Chap. XII. Art. 1) which author- 
 izes the Legislature " to grant any further powers to the Pres- 
 ident and Fellows of Harvard College, or to alter, limit, annul, 
 or restrain any of the powers now vested in them, provided 
 the obligation of contracts shall not be impaired," appears to 
 have encountered little opposition, as indeed might have been 
 expected; for it is merely sounding words. It makes no 
 change in the condition or liabilities of that institution. Cor- 
 porations have no existence, and no rights, but what are given 
 by their charter. Except so far as that protects them, they 
 are wholly at the Legislature's mercy. The Constitution of 
 the United States the supreme law of the land secures 
 the inviolability of contracts. If the charter of Harvard Col- 
 lege is not a contract, then the State government may now 
 do with Harvard College whatever in its wisdom and justice 
 and mercy, or whatever in temporary injustice and folly, it 
 will. If that charter is a contract, then any act of the Legis- 
 lature infringing it is null; it has no validity in law; it is not 
 worth the parchment it is written on. The relations of the 
 Legislature and Harvard College will be not a jot or tittle 
 different, whether the proposed provision in respect to them is 
 sanctioned or set aside. 
 
 The revised Constitution proposes (Chap. XII. Art. 3) to
 
 HARVARD COLLEGE. 299 
 
 repeal the legislation of the last forty or fifty years in respect 
 to the Board of Overseers of the College, and reinstate that 
 Board as it was established by the Constitution of 1780 ; viz. 
 so as to have it consist of the Governor, Lieutenant- Governor, 
 Council, and Senate, the President of the College, and the 
 Congregational ministers of Boston, Cambridge, Watertown, 
 Charlestown, Roxbury, and Dorchester. In the result of pre- 
 vious legislation in 1810 and 1812, an act was passed by the 
 General Court in 1814, providing that, with the consent of 
 the Corporation and Overseers (which was subsequently 
 given), the Speaker of the House, and fifteen ministers of 
 Congregational churches, with fifteen laymen, to be elected by 
 the Overseers as vacancies should occur, should be substitut- 
 ed in the Board for the Congregational ministers of the six 
 neighboring towns. In 1834, with the same consent of the 
 Corporation and Overseers (made a condition by the act), 
 the Overseers were empowered to choose clerical members of 
 their body, being ministers of other than Congregational 
 churches. In 1851, the act was passed, now in force, which, 
 with the same consent, constituted the Board of five high 
 officers^ of the Commonwealth, the President and Treasurer 
 of the College, and thirty persons to be chosen from time to 
 time by joint ballot of the Legislature. The Board thus 
 formed, the proposed Constitution, copying the article of the 
 Constitution of 1780, now proposes to dissolve, to displace 
 all the recently and previously elected members, consisting of 
 different religious denominations, and seat in their places, 
 among others, the Congregational ministers of Boston and 
 the vicinity ; these Congregational ministers being in number 
 some sixty or seventy, a clear majority of the whole Board. 
 
 As far as I have looked into the debates of the Convention, 
 I find no light on the history of this proceeding. Did the 
 Convention for reasons unexplained, and not to be guessed 
 at actually decide to reaffirm the original provision of 1780, 
 overriding and annulling all subsequent legislation on the 
 subject ? Or is it possible, on the other hand, that here is a 
 mistake in the Convention's declaration to the people of its 
 own doings ? Who is authorized to say this ? Here is the 
 formal document in our hands, signed by the President of the
 
 300 
 
 HARVARD COLLEGE. 
 
 Convention, and countersigned by its Secretaries. So far as 
 the public knows, there is nothing behind this document 
 no engrossed instrument for us to appeal to, as more au- 
 thentic and certain evidence of what the Convention actually 
 proposes for our votes ; and, even if there be any thing of that 
 kind, this pamphlet is what is laid by the Convention before 
 the people, for them to vote upon. This part of the revised 
 Constitution is known, by all the proof by which any other 
 part is known, to have been approved, and presented for rat- 
 ification, by the action of that body. If this part of the re- 
 vised instrument does not truly represent the will of the Con- 
 vention, how do we know that any other part does ? Where 
 is our proof, that, in casting our affirmative vote, we shall 
 really confirm what the Convention designed ? 
 
 At all events, if we vote for this project of a Constitution, 
 one thing, among others, which we aid in doing, is this : we re- 
 create the old Board of Overseers of Harvard College, with 
 all its circumstances so little in harmony with the views of the 
 present day. We turn out Episcopalians, Baptists, Univer- 
 salists, and Methodists, laymen and ministers, and put 
 in their places a large number of Congregational clergymen. 
 If this provision, included in and inseparable from the new Con- 
 stitution, takes effect, then the Board of Overseers will be con- 
 stituted agreeably to it, after the first Monday of next Febru- 
 ary (Chap. XIII. Art. 7). Is it said that subsequent legislation 
 may correct the blunder (if blunder it be), and restore the 
 present organization ? But it may be presumed, that subse- 
 quent legislation will resemble previous legislation, in making 
 its provisions contingent on the consent of the Overseers. If so, 
 what Overseers will be competent to give that consent? The 
 proposed Constitution, if it prevails, assumes to supersede and 
 displace the present Board. If its provision is ratified and is 
 valid, there will be no Board after February, except that after 
 the pattern of former centuries ; and whether the sixty or more 
 Congregational ministers will consent voluntarily to abdicate 
 the trust thus unexpectedly thrust upon them, is what no one 
 can pretend certainly to know. 
 
 However these matters may be viewed, they do not tend to 
 heighten our confidence in the careful deliberation and exact-
 
 SCHOOL FUND. 301 
 
 ness with which our business was done in the Convention. 
 They rather go to create a suspicion, that in other particulars, 
 where the lapse is less obvious, the Convention may not have 
 proceeded with that circumspection which the transaction of 
 such great affairs demands. 
 
 Chap. IX. Art. 8 is mere surplusage. It simply repeats Chap. 
 II. Art. 3, Chap. VI. Art. 4, and Chap. VII. Art. 4. It stands, 
 however, as another evidence of the haste with which the in- 
 strument was digested. So in Chap. V. Art. 1, a paragraph 
 is designated by the change of type as not among " existing 
 provisions of the Constitution," when, in fact, it does make a 
 part of that instrument, by the tenth amendment, adopted in 
 1831. 
 
 The provision (Chap. XII. Art. 4) " for the enlargement of 
 the School Fund of the Commonwealth, until it shall amount 
 to a sum not less than two millions of dollars," is a good one. 
 The money could be well used in that way. But there is no oc- 
 casion to disturb the Constitution for it. A common legislative 
 act will answer all the purpose ; and that there will be no op- 
 position to such an act, whatever party is in power, is proved 
 by the fact, that in the Convention the vote for the proposition 
 was unanimous. The present fund was established, not by 
 constitutional provision, but by common legislation. The 
 Statute of 1834 (Chap. 169) appropriated a million of dollars 
 for the purpose. The Statute of 1851 (Chap. 112) added half 
 a million. A Statute of 1854 may add another half-million 
 (which all parties are agreed to), and the work of this part of 
 the proposed Constitution is done. 
 
 The Fourteenth Chapter contains certain provisions in re- 
 spect to Future Amendments of the Constitution. 
 
 In the first place, specific and particular amendments may 
 be made by certain action of two successive Legislatures, 
 sanctioned by a subsequent popular vote (Chap. XIV. Art. 3). 
 Here, the existing constitutional provision to this effect is in- 
 corporated into the new Constitution. There is no change. 
 
 Another Article (2) recognizes " the power of the Legislature 
 to take action for calling a Convention," " as heretofore prac* 
 27
 
 302 
 
 FUTURE AMENDMENTS. 
 
 tised in this Commonwealth." This (which comes in a pro- 
 viso) may be thought superfluous, as the practice has sufficient- 
 ly established the right, which indeed did not need practice to 
 establish it; and if, in a hot party discussion, it has been pro- 
 fessedly called in question within the last two or three years, 
 the fact that, after all the objection made, the practice has 
 been followed up in yet another instance, establishes it on a 
 firmer basis than before. The party which recently opposed 
 it and denied its legitimacy has given in. At its more recent 
 State Convention, it declared itself in favor of certain consti- 
 tutional amendments, " to be obtained, if possible, through the 
 action of the Legislature ; and, failing thereby, a new popular 
 Convention, based upon an equality of representation." 
 
 These two methods of obtaining constitutional amendments, 
 which from time to time may be desired, are already in force. 
 Are they sufficient? Because, if so, it is not worth while to 
 provide for keeping the question of constitutional amendments 
 perpetually in the field, as a football for parties. A constitu- 
 tion of government is supposed to have a degree of stability 
 and permanency. We expect to make it productive of a 
 maximum of public good by wise applications of it, not by 
 frequent revisals and alterations, involving critical experiments. 
 One interest may perhaps profit by it peculiarly at one time, 
 and another at another. But we do not expect to be taking it 
 to pieces on every momentary dissatisfaction, to adjust its ma- 
 chinery to the interests, passions, or fancies of the hour. It is 
 not worth while to encourage ourselves or others, on every 
 passing occasion of disappointment or defeat, to go to work 
 on a reconstruction of the whole frame of government. That 
 was the way they did in the Italian republics of the Middle 
 Age, till the people were always making constitutions, instead 
 of making and enjoying Jaws ; and a man needed to have a 
 quick memory to tell what government he lived under this 
 year, and could have merely a guess as to what government 
 he would be living under the next. Florence, before her frol- 
 ics of this kind were brought to an end by the Grand Ducal 
 despotism, had at one time, if I remember aright, five consti- 
 tutions in ten years. It was not the way to a quiet life. 
 
 There is some danger that, should the fundamental law
 
 FUTURE AMENDMENTS. 303 
 
 hold out a formal invitation to frequent and easy revolutions, 
 it will be too readily thought, whenever any thing goes wrong, 
 that a flaw in the Constitution is the cause ; from which it 
 may probably follow, that, in patching one supposed breach, 
 another will be made, and so on ; the process being attended 
 at every step with much exasperation, anxiety, and discontent. 
 As with violent, so with peaceable revolutions : there is no 
 good done, but some harm, by anticipating occasions for them. 
 When the necessity comes, it will manifest itself and take care 
 of itself. And, as often as constitutional amendments in 
 Massachusetts are necessary, the methods already in use for 
 obtaining them seem abundantly sufficient for the need. 
 
 But the framers of the proposed Constitution view these 
 things differently. Their treatment supposes an incurable 
 chronic distemper of the body politic, requiring attention to be 
 turned periodically to the application of pharmacy. Once in 
 every twenty years the people must, perforce, sit in judgment 
 on their Constitution (Chap. XIV. Art. 1). The child now 
 ten years old, if he survives threescore and ten, must four 
 times, since he was of an age to know what government 
 means, have witnessed long and sharp agitations of the most 
 momentous questions a community can entertain. 
 
 But even this does not satisfy our Constitution-makers. It 
 is not enough for them to have the question perpetually pend- 
 ing a quarter of the time (for five years in every twenty are 
 little enough to allow, from the opening to the closing of the 
 argument) ; they have made arrangements for throwing it 
 in, every year, among the elements of partisan strife and in- 
 trigue. That is to say, they have provided (Chap. XIV. Art. 
 2), that, "whenever towns or cities containing not less than 
 one third of the qualified voters of the Commonwealth " shall, 
 at the autumnal election, request the Legislature to take the 
 sense of the people on the calling of a Convention to revise 
 the Constitution, it shall be the duty of the Legislature to 
 bring the people to that vote. There may be no occasion 
 whatever for the step. There may be no decent pretence of 
 occasion for it. The people, if called to vote, may vote it 
 down by vast majorities. The less than fifth part of the voters 
 of the Commonwealth necessary to bring the people to that
 
 304 CONCLUSION. 
 
 vote (for less than a fifth part may be so distributed as to give 
 lean majorities in "towns or cities containing not less than 
 one third of the qualified voters ") may not be forthcoming, 
 nor one tenth of that small fraction. But how often will it 
 happen, that a faint prospect of gaining a sufficient number 
 of the people to the movement will be motive enough with 
 unquiet spirits to prompt them to make the attempt ? And 
 how often will the suggestion of such an agitation, thrown in 
 as a make-weight with other matters, be an instrument in the 
 hands of crafty party managers in getting what they may 
 choose to claim ? How often, under this invitation, which the 
 proposed Constitution throws out, will the promise or the 
 threat of attempting to work up the requisite fragment of the 
 people to such action, be an element in the annual election- 
 eering ? Will it be every year, or every other year, or one 
 year in three ? And will our government be the safer ; or, if 
 not required by the safety of our government, will our party 
 divisions be less irritating, and our lives more comfortable, for 
 this new invitation to party turbulence and chicane, which it 
 is proposed annually henceforward to extend ? Should we 
 not invite by this provision some uncompensated annoyances 
 of a perpetual state of revolution ? 
 
 CONCLUSION. . 
 
 IN the foregoing pages, I have set down some of the reasons 
 which compel me to vote NO on the first of the questions 
 presented to the people by the recent Convention, the ques- 
 tion relating to that part of the revised Constitution which 
 embraces the Frame of Government for the Commonwealth. 
 In my view, some of the innovations which it proposes 
 and, among them, some of the most important are entirely 
 unsustained by good reasons, and can only be fruitful of evil ; 
 while, of the really beneficial changes which it offers, there is 
 not one which cannot be obtained, or which would not proba- 
 bly be obtained, with a very little delay, through simple legis- 
 lative action, or through the method of amendment provided by 
 the existing Constitution. Under these circumstances, I can-
 
 CONCLUSION. 305 
 
 not think I should be acting the part of a man of common 
 sense, to make any considerable sacrifice of other just con- 
 stitutional principles and provisions for their attainment; cer- 
 tainly not to buy them at the cost of such mischievous pro- 
 visions as those of the new Constitution relating to the Ju- 
 diciary and the basis of representation. 
 
 The provisions of the existing Constitution, in respect to 
 the House of Representatives, are far from good ; but that is 
 no reason why we should supersede them by others more sub- 
 ject than themselves to the same class of objections, more 
 unjust, and, what is worse, increasingly more unjust from cen- 
 sus to census. If we are not at present prepared to apply a 
 full remedy to the evil, let us not, in blind impatience, extend 
 and aggravate it. And, meanwhile, it is by no means beyond 
 reasonable expectation, that, as from time to time, by the oper- 
 ation of the existing Constitution, more and more of the 
 small towns exchange their annual representation for repre- 
 sentation only a part of the time (which is the great evil com- 
 plained of), that provision of the Constitution will work its 
 way into extensive use, which authorizes them to associate 
 together for annual representation, thus approximating a 
 universal district system. 
 
 I have surveyed the subject from the point of view of one 
 opposed, in all political action, to the Slave Power which 
 governs this country. I am a member of that party (of 
 whomsoever composed) which aims, under the Federal Con- 
 stitution, to nationalize and fortify liberty, to localize and dis- 
 courage slavery. But I cannot undertake to act on all other 
 questions with this or that man who sympathizes with me on 
 this question. In my belief, history will presently be saying, 
 that the course of Massachusetts Whigs, in these last years, 
 has been one of extreme folly, interspersed with complicity in 
 some great national crimes. But I am not going to take part 
 in bringing discredit on our excellent Massachusetts, and 
 trouble on my fellow-citizens and my posterity, for the sake 
 of punishing the sins of the Whigs. When I attached my- 
 self to the Free Soil party, I came under no engagement in 
 respect to changes in the Constitution of this Commonwealth. 
 If my memory serves me, the State Committee of that party,
 
 306 CONCLUSION. 
 
 in their address published early in this year, declared that this 
 question of constitutional amendments was not a party ques- 
 tion. At all events, with or without the leave of that Com- 
 mittee, such is my opinion. It is, or should be, a question 
 quite aside from party ; rather, a question altogether above it. 
 And so far as the Free Soil party should be connected with 
 the support of some of the specific amendments now proposed, 
 the party would, I think, be injured by that connection, and 
 its great objects be prejudiced and obstructed. 
 
 "While I have spoken freely of the proposed experiments 
 upon the Great Charter of our Massachusetts liberties, it must 
 be superfluous to say, that it has been without the slightest 
 intimation of want of respect for any to whom these experi- 
 ments appear in a different light. In the majority of the Con- 
 vention were men eminently virtuous, disinterested, and pa- 
 triotic. I would not say that a man of that majority was 
 wanting in those qualities.' But that is not the question 
 which we are presently to vote upon. The question is, 
 whether the great changes proposed will conduce to the honor 
 and prosperity of Massachusetts, to the safety, welfare, and 
 satisfaction of ourselves and our children. 
 
 THE END.
 
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